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[ { "docid": "23443407", "title": "", "text": "magistrate judge found that the section 1983 claim failed adequately to allege state action on the part of Tyrone Hospital or the defendant doctors. Following de novo review, the district court adopted the report and recommendation of the magistrate judge dismissing the federal claims and remanding the remaining claims to state court. This timely appeal followed. II. A. We exercise plenary review of the . district court’s order dismissing the plaintiffs’ federal claims pursuant to Fed.R.Civ.P. 12(b)(6). Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.1993). In reviewing the order we must accept as true each of the factual allegations set forth in the complaint, D.R. v. Middle Bucks Area Voc. Tech. School, 972 F.2d 1364, 1367 (3d Cir.1992). We are particularly vigilant in reviewing orders dismiss ing claims alleging civil rights violations; we will “not affirm a dismissal at the pleading stage, unless it is readily discerned that the facts cannot support entitlement to relief.” Carter v. City of Philadelphia, 989 F.2d 117, 118 (3d Cir.1993). With this liberal standard in mind, we turn to the plaintiffs’ claim that the defendants conspired to deprive her of the “fundamental right to procreation” in violation of section 1985(3). B. The requirements for establishing a cause of action under 42 U.S.C. § 1985(3) are set forth in a line of Supreme Court cases beginning with the decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). There, the Supreme Court clarified that the reach of section 1985(3) is limited to private conspiracies predicated on “racial, or perhaps otherwise class based, invidiously discriminatory animus.” Id. at 102, 91 S.Ct. at 1798. The Court strictly construed the requirement of class-based invidious animus in United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), finding that commercial and economic animus could not form the basis for a section 1985(3) claim. Read together, these two cases establish that in order to state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by" } ]

[ { "docid": "1607032", "title": "", "text": "1790, 29 L.Ed.2d 338 (1971)). Mere allegations of conspiracy which are lacking in any factual speci ficity will not suffice to survive a motion to dismiss. See Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir.1984); Burnett v. Short, 441 F.2d 405, 406 (5th Cir.1971). Plaintiffs Complaint contains nothing more than terse, conclusory allegations that Defendants conspired with each other to violate his constitutional rights and does not allege that any racial or class-based invidious discriminatory animus lay behind Defendants’ actions. Plaintiff has not, therefore, alleged facts sufficient to state a cause of action under Section 1985. Section 1986 “is a companion to section 1985(3) and provides a cause of action against persons who, knowing that a violation of section 1985(3) is about to be committed and possessing the power to prevent its occurrence, fail to take action to frustrate its execution.” White, 179 F.Supp.2d at 421 (citing Rogin v. Bensalem Tp., 616 F.2d 680, 696 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981)). “[T]ransgressions of § 1986 by definition depend on a preexisting violation of § 1985.” Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.1994). The allegations in Plaintiffs complaint which, as the Court has noted, fail to set forth a cause of action under 1985, therefore, necessarily also fail to state a valid claim under Section 1986. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir.1988) (“A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985.”). Accordingly, the Court will grant Defendants’ motion to dismiss Plaintiffs federal civil rights claims under 42 U.S.C. §§ 1985 (Count V) and 1986 (Count III). C. QUALIFIED IMMUNITY FROM LIABILITY UNDER 42 U.S.C. § 1983 Defendants also move to dismiss Plaintiffs Section 1983 claims for unlawful arrest (Count V), false imprisonment (Count II), and malicious prosecution (Count X) on the grounds of qualified immunity. Defendants, as law enforcement officers employed by the State of New Jersey, presumptively enjoy qualified immunity for actions, such as arrests, which are taken within the scope of" }, { "docid": "16292755", "title": "", "text": "moving defendants violated the Pennsylvania Juvenile Court Act of 1972 in that the decedent was not taken to the hospital for medical attention at the time of his arrest. The part of the Act upon which the plaintiff relies is codified at 42 Pa.Cons.Stat.Ann. § 6326(aX3). The third and fourth causes of action alleged by the plaintiff are state law wrongful death and survival actions, over which the plaintiff requests the Court to assert pendent jurisdiction. It is clear that the plaintiff’s claim under section 1985(3) must be dismissed. The Supreme Court has stated that there can be no recovery under this section unless there is “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (footnote omitted). The plaintiff’s complaint does not allege that there was a conspiracy among the moving defendants to act in the manner they did, or that there was any racial or class-based invidiously discriminatory animus behind their actions. The plaintiff has thus failed to allege a claim upon which relief can be granted under section 1985(3). The plaintiff’s failure to state a claim for relief under section 1985(3) mandates that we dismiss his claims under section 1986 because a section 1986 violation can be predicated only upon a violation of some part of section 1985. 42 U.S.C.A. § 1986; Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980). Furthermore, the plaintiff’s claims under section 1988 will be dismissed because that section “is procedural and alone does not give rise to a cause of action.” Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). In connection with the claims of the plaintiff under the Fourth, Fifth, Eighth, and Fourteenth Amendments, an examination of the complaint discloses that he has not alleged any violation by the moving defendants of the rights secured to him by the Fourth and Fifth Amendments. The plaintiff has not alleged that the search of the decedent’s room or the decedent’s arrest violated the Fourth Amendment, and he" }, { "docid": "6036330", "title": "", "text": "the fourteenth amendment, and argues that such a cause of action should not be recognized by this court. However, whether plaintiff has attempted to state a direct cause of action under the fourteenth amendment is of no moment, as such an action would be completely subsumed by her section 1983 claims. See Rogin v. Bensalem Township, 616 F.2d 680, 686-87 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). Therefore, I have no reason to decide whether to recognize a direct cause of action under the Constitution for the injuries plaintiff alleges she has suffered. Id. 2. Plaintiffs Claims under 42 U.S.C. § 1985(3) Plaintiff’s claims under section 1985(3), 42 U.S.C. § 1985(3), are based on her allegation that defendants engaged in a conspiracy to deprive her of the due process of law and of the equal protection of the laws during the course of her involuntary commitment and hospitalization. Each of the hospital defendants argues that plaintiff has failed to state a claim under section 1985(3). I agree. I find dispositive plaintiff’s failure to allege “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Plaintiff vehemently asserts that defendants invidiously discriminated against her, and that such invidious discrimination is actionable under section 1985(3). However, the Supreme Court has made it clear that section 1985(3) reaches only conspiracies motivated by certain types of class-based bias. United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 834-39, 103 S.Ct. 3352, 3358-61, 77 L.Ed.2d 1049 (1983). Plaintiffs complaint contains no averments which suggest that class-based bias motivated the alleged conspiracy against her. Therefore, unless plaintiff amends her complaint to allege specific facts to correct this deficiency, see infra pp. 1240-1241, her claims under section 1985(3) will be dismissed. 3. Plaintiffs Claims under 42 U.S.C. § 1986 Defendants Hosten, Yardumian, Jaffe and Patton have moved to dismiss plaintiff’s claims under section 1986. 42 U.S.C. § 1986. These defendants argue, correctly, that plaintiff’s failure to" }, { "docid": "9770771", "title": "", "text": "B. Section 1985 and 1986 Claims Plaintiff also brings claims under 42 U.S.C. §§ 1985 and 1986. 42 U.S.C. § 1985(3) provides, in relevant part: (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; * * * * * * in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. In order to state a cause of action for violations of this section, the following must be alleged: (1) a conspiracy by the defendants; (2) designed to deprive plaintiff of the equal protection of the laws; (3) the commission of an overt act in furtherance of that conspiracy; (4) a resultant injury to person or property or a deprivation of any right or privilege of citizens; and (5) defendants’ actions were motivated by a racial or otherwise class-based invidiously discriminatory animus. See Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798-1799, 29 L.Ed.2d 338 (1971); Robison v. Canterbury Village, Inc., 848 F.2d 424, 430 (3d Cir.1988) (racial or other prohibited animus necessary element of Section 1985(3) claim; Section 1986 claim companion to Section 1985(3) claim); Pratt v. Thornburgh, 807 F.2d 355, 357 (3d Cir.1986). In this case, plaintiff has wholly failed to allege the requisite elements of the civil rights claim he asserts. However, as stated above, in fairness, we will grant plaintiff leave to file a more definite amended complaint, if he" }, { "docid": "20063772", "title": "", "text": "whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). We recognize, however, that section 1985 is not a general federal tort law, and was not intended to reach all conspiratorial interferences with the rights of others. Taylor v. Nichols, 409 F.Supp. 927, 936 (D.Kan.1976), aff'd, 558 F.2d 561 (10th Cir.1977). In order to support a claim under the statute, plaintiff must be a member of a statutorily protected class, and actions taken by defendants must stem from plaintiff’s membership in that class. Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 746-47 (10th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981). There must be some racial, class-based, invidiously discriminatory animus behind the conspirators’ actions. Carpenters v. Scott, 463 U.S. 825, 838, 103 S.Ct. 3352, 3361, 77 L.Ed.2d 1049 (1983). We conclude that plaintiff’s section 1985 claim does not involve class-based, invidious discrimination. Furthermore, section 1985(3) does not reach nonracial, political conspiracies. Brown v. Reardon, 770 F.2d 896 (10th Cir.1985). Defendants’ motions for summary judgment as to the alleged violation of section 1985 are granted. Furthermore, because we have concluded that plaintiff’s section 1985 claim fails, his section 1986 claim must likewise fail. It is axiomatic that a section 1986 claim is entirely dependent upon the existence of a valid claim under section 1985. Brown v. Chaffee, 612 F.2d 497 (10th Cir.1979); Brown v. Reardon, 770 F.2d at 907. Defendants’ motions for summary judgment on plaintiff’s section 1986 claims are therefore granted. III. THE TITLE VII CLAIMS The BPU’s stated reason for terminating plaintiff was a “lack of commitment” based on his hesitancy to move his family from Indiana to Kansas City. Plaintiff, however, alleges that his termination from the BPU was in retaliation for his opposition to the BPU’s patronage hiring practices, his opposition to the BPU’s discriminatory employment practices, and his attempts to help certain black employees attain retroactive seniority status. See 42 U.S.C. §" }, { "docid": "6036331", "title": "", "text": "find dispositive plaintiff’s failure to allege “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Plaintiff vehemently asserts that defendants invidiously discriminated against her, and that such invidious discrimination is actionable under section 1985(3). However, the Supreme Court has made it clear that section 1985(3) reaches only conspiracies motivated by certain types of class-based bias. United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 834-39, 103 S.Ct. 3352, 3358-61, 77 L.Ed.2d 1049 (1983). Plaintiffs complaint contains no averments which suggest that class-based bias motivated the alleged conspiracy against her. Therefore, unless plaintiff amends her complaint to allege specific facts to correct this deficiency, see infra pp. 1240-1241, her claims under section 1985(3) will be dismissed. 3. Plaintiffs Claims under 42 U.S.C. § 1986 Defendants Hosten, Yardumian, Jaffe and Patton have moved to dismiss plaintiff’s claims under section 1986. 42 U.S.C. § 1986. These defendants argue, correctly, that plaintiff’s failure to state a claim under section 1985 precludes her from proceeding under section 1986, as a violation of section 1986 must be predicated upon a violation of section 1985. See, e.g., Rogin, 616 F.2d at 696. Moreover, plaintiff’s claims under section 1986 are barred by that statute’s one year limitations period. See 42 U.S.C. § 1986. For these reasons, defendants’ motions to dismiss plaintiff’s section 1986 claims will be granted. 4. Plaintiffs Claims under 42 U.S.C. § 9501 In her original complaint, plaintiff alleged that defendants violated certain rights guaranteed her under section 9501. 42 U.S.C. § 9501. Defendants Hosten, Yardumian, Jaffe and Patton have moved to dismiss plaintiff’s section 9501 claims, arguing that section 9501 does not create any substantive rights enforceable in a private lawsuit. I decline to address this issue, as plaintiff did not allege in her amended complaint that defendants had violated section 9501. Plaintiff’s amended complaint supersedes her original one, see 3 J. Moore, Moore’s Federal Practice H 15.08[7] (2d ed. 1985), and therefore her section 9501 claims are no longer" }, { "docid": "18281852", "title": "", "text": "state court relating to the admission, discipline, or disbarment of members of its bar may be reviewed only by the United States Supreme Court. MacKay v. Nesbett, 412 F.2d 846 (9th Cir.1969). However, plaintiffs action states claims for relief under § 1983 and does not seek review of the state court judgment. It is a personal action for damages against the defendants alleging among other things a conspiracy to deprive plaintiff of his civil rights. Accordingly, jurisdiction is proper under 28 U.S.C. § 1343(3). II. Plaintiff has alleged deprivations of his civil rights, in violation of 42 U.S.C. §§ 1983, 1985(3), and 1986. With respect to §§ 1985(3) and 1986, it is clear that plaintiff has failed to state a justiciable claim. To recover under § 1985(3), a plaintiff must establish the existence of “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). This requisite discriminatory animus has been found in discrimination against classes based on race, ethnic origin, sex, religion, or political loyalty. See Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir.1976); Murphy v. Mount Carmel High School, 543 F.2d 1189, 1192 n. 1 (7th Cir.1976). Plaintiff has made no allegations relating to race or class. He alleges only that defendants conspired to violate his rights “for exercising his right to Freedom of Speech.” This allegation fails to state a claim under § 1985(3). Section 1986 is derivative of § 1985; it merely provides a remedy for misprision of a violation of § 1985. Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 203 (7th Cir.1985); Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir.1980). It follows that because plaintiff has failed to state a § 1985 claim, he has no claim under § 1986. Plaintiff’s § 1983 claim is a more difficult matter. Defendants contend that with regard to his conspiracy claim, plaintiff has failed to allege facts with sufficient particularity to properly support a claim of conspiracy. I agree that to plead a conspiracy, plaintiff" }, { "docid": "7452369", "title": "", "text": "animus requirement and fails to plead any factual basis establishing that racial or otherwise invidious animus motivated the Defendants’ conduct. At best, the Amended Complaint establishes a “tattletale” predicate: that the Defendants focused their efforts on policing the general area surrounding the Plaintiffs’ property after they mailed complaints about the police officers to the Defendant Townships. Such motivation, however ill-conceived, is insufficient to satisfy the express requirements of United Brotherhood and its progeny, and for this additional reason, we will dismiss the Plaintiffs’ Section 1985(3) claim for civil rights conspiracy. Finally, the Defendants contend that because the Plaintiffs’ civil rights conspiracy claim is without merit, we must also dismiss the Plaintiffs’ claim for neglect to prevent a civil rights conspiracy pursuant to 42 U.S.C. § 1986. Section 1986 provides, in pertinent part, that [ejvery person who, having knowledge that any of the wrongs conspired to be done [as included in Section 1985] are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act be committed, shall be liable to the party injured ... for all damages caused by such wrongful act. 42 U.S.C. § 1986. The express language conditions relief for neglect on the requirement that the wrongful act be actually committed, and courts in this Circuit have held that a Section 1985 violation is a condition precedent to a viable Section 1986 claim. See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir.1980) (holding that “[b]eeause transgressions of § 1986 by definition depend on a preexisting violation of § 1985, if the claimant does not set forth a cause of action under the latter, its claim under the former necessarily must fail also”); see also Korn v. Lacey Twp., 78 Fed.Appx. 199, 208 (3d Cir.2003) (“Without a cognizable § 1985(3) claim, a claim for violation of § 1986 must also fail.”). Thus, because we have concluded supra that the Defendants have not committed a civil rights conspiracy pursuant to Section 1985, we must also conclude that Plaintiffs have failed to" }, { "docid": "2572180", "title": "", "text": "be DENIED at this time. C. Plaintiffs Failure to State a Claim under 42 U.S.C. §§ 1985 and 1986. Defendants claim plaintiff has failed to state a claim under 42 U.S.C.A. §§ 1985 and 1986 because he has not alleged there was a conspiracy between defendants nor did he claim the purpose of the conspiracy was to deprive him of equal protection, privilege and immunities. Section 1985 has three (3) subsections, each of which sets forth a distinct cause of action. The first two subsections are plainly inapplicable: § 1985(1) protects federal officers from those conspiring to prevent (by force, intimidation, or threat) the officer from discharging his or her duties; and § 1985(2) protects parties and witnesses in federal court from conspiracies to deter them from appearing or testifying. Section 1985(3) is broader in its reach and prohibits, in general terms, conspiracies to violate civil rights. Therefore, we conclude plaintiff asserts his claim under §§ 1985(3) and 1986. Section 1986 extends liability to persons who knowingly fail to prevent conspiracies under § 1985. 42 U.S.C.A. §§ 1985 and 1986. Section 1985(3) proscribes certain enumerated conspiracies. To state a claim under § 1985(3) a plaintiff must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). In Griffin, the Supreme Court placed a gloss on these four elements, effectively adding a fifth requirement. It construed the statute’s references to “equal protection” and “equal privileges and immunities under the laws” to signify a plaintiff may recover thereunder only when the conspiratorial conduct of which he complains is propelled by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.”" }, { "docid": "1607031", "title": "", "text": "itself create any substantive rights, but rather “creates a cause of action under rather limited circumstances against both private and state actors,” Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir.2001), for conspiring to violate federal rights and privileges protected by the Constitution and federal statutes. White v. Williams, 179 F.Supp.2d 405, 421 (D.N.J.2002) (Pisano, J.) (citing Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979)). For a Section 1985 claim to survive a motion to dismiss, a plaintiff must allege: “(1) a conspiracy; (2) motivated by a racial or class-based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997) (citing Griffin v. Breckenridge, 403 U.S. 88, 91, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). Mere allegations of conspiracy which are lacking in any factual speci ficity will not suffice to survive a motion to dismiss. See Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir.1984); Burnett v. Short, 441 F.2d 405, 406 (5th Cir.1971). Plaintiffs Complaint contains nothing more than terse, conclusory allegations that Defendants conspired with each other to violate his constitutional rights and does not allege that any racial or class-based invidious discriminatory animus lay behind Defendants’ actions. Plaintiff has not, therefore, alleged facts sufficient to state a cause of action under Section 1985. Section 1986 “is a companion to section 1985(3) and provides a cause of action against persons who, knowing that a violation of section 1985(3) is about to be committed and possessing the power to prevent its occurrence, fail to take action to frustrate its execution.” White, 179 F.Supp.2d at 421 (citing Rogin v. Bensalem Tp., 616 F.2d 680, 696 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981)). “[T]ransgressions of § 1986 by" }, { "docid": "20123857", "title": "", "text": "suspect a conspiracy to deny Eugene Chudzik’s rights of access to the courts under the due process clause of the 14th amendment by ‘impeding, hindering, obstructpng] or defeating the due course of justice.’ ” Id. at 29. While the Court concludes that these factual averments do not in a meaningful way sufficiently allege a conspiracy which has deprived Plaintiffs of their civil rights, the Court need not rest its decision on this conclusion in order to support its ultimate conclusion to grant summary judgment as to these claims. Rather, the Court emphasizes the more fundamental position that contrary to Plaintiffs’ claim, neither provision of section 1985 upon which Plaintiffs rely is applicable to the case at bar. In order for a plaintiff to sustain a cause of action under section 1985(3), there must be a showing of “... some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Similarly, under section 1985(2) which has as its object the denial of equal protection of the laws, Plaintiffs had to have alleged a class-based invidiously discriminatory animus. Brawer v. Horowitz, 535 F.2d 830, 840 (3rd Cir.1976). Plain tiffs here have not alleged, nor are there any facts in the record which would even approach this required showing of invidious discrimination. Accordingly, summary judgment is appropriate as to Plaintiffs’ claims raised under both sections of section 1985. 4. Plaintiffs’ Section 1983 Claim of Excessive Force Against Officer Brown in His Individual Capacity Is Dismissed Under the Applicable Statute of Limitations Period At this point, the only remaining federal claim is the claim of excessive force against Defendant Brown in his individual capacity. While the Court has serious reservations as to whether the Plaintiffs have adequately stated a claim of excessive force necessary to survive a motion for summary judgment, for purposes of this analysis the Court assumes arguendo that Plaintiffs have indeed made such a showing. Both parties concur that for suits brought under section 1983, the applicable statute of limitations is two years from" }, { "docid": "7452370", "title": "", "text": "do so, if such wrongful act be committed, shall be liable to the party injured ... for all damages caused by such wrongful act. 42 U.S.C. § 1986. The express language conditions relief for neglect on the requirement that the wrongful act be actually committed, and courts in this Circuit have held that a Section 1985 violation is a condition precedent to a viable Section 1986 claim. See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir.1980) (holding that “[b]eeause transgressions of § 1986 by definition depend on a preexisting violation of § 1985, if the claimant does not set forth a cause of action under the latter, its claim under the former necessarily must fail also”); see also Korn v. Lacey Twp., 78 Fed.Appx. 199, 208 (3d Cir.2003) (“Without a cognizable § 1985(3) claim, a claim for violation of § 1986 must also fail.”). Thus, because we have concluded supra that the Defendants have not committed a civil rights conspiracy pursuant to Section 1985, we must also conclude that Plaintiffs have failed to state a claim for neglect to prevent said conspiracy. y. CONCLUSION For all of the reasons articulated herein, the Court will grant the Defendants’ Motion to Dismiss (doc. 26) and dismiss the Plaintiffs’ Amended Complaint in its entirety. While we are inordinately reluctant to do so, we will grant the Plaintiffs leave to amend their Complaint, in accordance with the stated policy of this Circuit, cautioning the Plaintiffs as we do that absent substantial revision consistent with this opinion, their pleading will suffer the same fate. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251-52 (3d Cir.2007) (“Our precedent supports the notion that in civil rights cases district courts must offer amendment — irrespective of whether it is requested — when dismissing a case for failure to state a claim unless doing so would be inequitable or futile.”). This leave to amend is restricted to Plaintiffs’ Fifth Amendment claim only. The Plaintiffs’ Amended Complaint patently establishes that the Fourth Amendment claim therein is well beyond the applicable statute of limitations. Likewise, it" }, { "docid": "13421566", "title": "", "text": "ensure the rights of others to equal protection. 42 U.S.C. § 1985(2) (2009). Section 1986 penalizes those with knowledge of and the power to prevent § 1985 conspiracies who fail to do so. 42 U.S.C. § 1986 (2009). On appeal, Bryant contends that the Individual Appellees’ actions were intended to prevent him from discharging his duties as an MSANG officer and to impede him from “engaging the due course of justice ... with the intent to deny ... the equal protection of the laws.” Bryant argues, without citation to any authority, that “[n]o class status is need[ed] for such a claim under 42 U.S.C. § 1985(2).” We disagree. The “language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or ... class-based, invidiously discriminatory animus behind the conspirator’s action.” See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (emphasis added) (referring to § 1985(3)). This Circuit has held that the class-based animus requirement of § 1985(3) applies equally to causes of action under the second clause of § 1985(2) such as Bryant’s claims here. Daigle v. Gulf State Utils. Co., 794 F.2d 974, 979 (5th Cir.1986) (noting the parallel language in §§ 1985(2) and 1985(3) prohibiting certain conduct with an intent to deny “equal protection of the laws”). Moreover, we have previously rejected the argument that “whistleblowers” are a protected class for purposes of § 1985 claims. See Garrie v. James L. Gray, Inc., 912 F.2d 808, 813 n. 13 (5th Cir.1990). Because Bryant’s status as a whistleblower does not entitle him to protection under § 1985(2), the district court correctly dismissed the claim. Bryant also appeals the district court’s grant of summary judgment on his § 1985(1) claims predicated on vandalism and violence. A cause of action under § 1985(1) requires no allegation of racial or class-based discriminatory animus. See Kush v. Rutledge, 460 U.S. 719, 726, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). Accordingly, Bryant’s “failure to identify any such animus is no impediment.” Bryant II, 519 F.Supp.2d at 629. Nonetheless, the" }, { "docid": "954094", "title": "", "text": ". the violation of any rights that might arise exclusively by failure to comply with some of the procedures provided by city charter, ordinances and regulations thereunder, do not rise to the level of a federal constitutional violation.” State of Mo. ex rel. Gore v. Wochner, 620 F.2d 183 (8th Cir. 1980). D. Plaintiff further claims that defendants Killeen, Morgan and Tungate conspired together “to deprive Your Plaintiff of the equal privileges and immunities under the laws and of equal protection of the laws,” under 42 U.S.C. § 1985(3), and that defendants Morgan, Behler, Petitpren, Majors and Kozak failed to prevent such conspiracy despite their knowledge and ability to do so under 42 U.S.C. § 1986. Section 1985(3) makes actionable a conspiracy to deprive a person of the equal protection of the law. Unlike § 1983, “color of law” is not necessary for a § 1985 action; however, it is necessary to allege and prove a conspiracy, the acts in furtherance thereof and that these acts stemmed from a “class-based” animus. Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971); Family Forum v. Archdiocese of Detroit, 347 F.Supp. 1167 (E.D.Mich.1972). The conspiracy “. . . must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Class-based motivation is an essential element of § 1985(3) claim. “The language [of the statute] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” (Emphasis in original). Id. at 102, 91 S.Ct. at 1798. The Second Amended Complaint fails to allege with any particularity the existence of any class-based, invidiously discriminatory animus behind the actions of defendants which affected plaintiff. Paragraph 17 of the Second Amended Complaint alleges “That each and all of the acts of the Defendants alleged herein were done to Plaintiff, a black person, on the basis of his race and color.” The allegations in support merely indicate defendants’" }, { "docid": "5968490", "title": "", "text": "action based on 18 U.S.C. § 245(b)(1) may be disregarded because that provision is solely a criminal statute. Section 245(b)(1) permits federal prosecution for interference with a long list of federally protected activities; it confers neither substantive rights nor a private right of action for damages. See New York v. Horelick, 424 F.2d 697,702 (C.A.2), cert. denied, 398 U.S. 939, 90 S.Ct. 1839, 26 L.Ed.2d 273 (1970); Staelens v. Yake, 432 F.Supp. 834, 836 n.1 (N.D.Ill. 1977). Plaintiffs also rely on 42 U.S.C. §§ 1985(2) and (3) and 1986 to state a cause of action for damages against the FBI agents and defense counsel. However, in order to state a claim under section 1985(3), which authorizes damage suits against persons who conspire to deprive “any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws,” the plaintiffs must allege “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Since no such allegation has been made, the plaintiffs’ claim of conspiracy based on § 1985(3) against all the defendants, including the FBI agents and defense counsel, will be dismissed. Turning to the plaintiffs’ claims under 42 U.S.C. § 1985(2), the Court notes that the statute is divided by a semicolon into two parts. The latter part applies to conspiracies to obstruct justice “in any State or Territory” undertaken “with intent to deny to any citizen the equal protection of the laws.” The Courts have construed this part of section 1985(2) as requiring a “class-based, invidiously discriminatory animus” as an essential element of a claim thereunder. Brawer v. Horowitz, supra, 535 F.2d at 840; Hahn v. Sargent, 523 F.2d 461, 469 (C.A.l, 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976); accord, Dacey v. Dorsey, 568 F.2d 275, 277 (C.A.2, 1978). Because the- plaintiffs have not alleged any class-based animus, their claim under the second half of section 1985(2) against all the defendants will be dismissed. As Judge" }, { "docid": "17966135", "title": "", "text": "to state a cause of action under § 1985(2)’s first clause. De-Leo also has failed to state a claim under § 1985(2)’s second clause because he has failed to allege he is a member of a protected class and that Defendants’ actions were motivated by class-based animus. DeLeo notes in his Opposition, but not in the Complaint, that he is of Italian descent. Even assuming Italian heritage qualifies as a suspect class, DeLeo does not allege Defendants acted against him because of his ethnic background. De-Leo’s Complaint alleges only that Ama-dor’s motivation was to secure Rudin’s media rights for himself. iii. Section 1985(3) Section 1985(3) sets forth three different types of claims. Section 1985(3)’s first clause provides a cause of action against private individuals who conspire to deny any person equal protection of the laws. Section 1985(3)’s second clause provides a cause of action for a conspiracy which has as its purpose preventing or hindering state authorities from giving or securing equal protection of the laws to persons within the state. Section 1985(3)’s third clause provides a cause of action for a conspiracy to interfere with federal elections. To prove a violation of § 1985(3) under the first two clauses, a plaintiff must show “ ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the eonspira-tors’ action.’ ” Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir.2001) (emphasis omitted) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). DeLeo has not stated a cause of action under § 1985(3). As previously discussed, DeLeo has faded to allege or provide any evidence Defendants were motivated by an invidiously discriminatory purpose. Additionally, DeLeo makes no claim Defendants interfered with a federal election. DeLeo’s citations to 42 U.S.C. § 1983 and § 1985 are insufficient to establish federal jurisdiction. Because DeLeo has failed to assert a substantial, non-frivolous federal claim, this Court lacks subject matter jurisdiction. B. Amending the Complaint DeLeo requests the Court permit him to amend his Complaint to assert jurisdiction under 28 U.S.C. § 1343, and to add as defendants the Central Christian" }, { "docid": "14810445", "title": "", "text": "v. Pennsylvania R. Co., 5 F.R.D. 76, 79 (M.D.Pa.1946). Third, plaintiff must show that the purpose of the conspiracy was to deprive him of equal protection of the laws. See Brawer v. Horowitz, 535 F.2d 830, 837 (3d Cir.1976). Plaintiff need not show defendants acted willfully. Griffin, supra, 403 U.S. at 102 n. 10, 91 S.Ct. at 1798 n. 10. Rather “the motivation aspect of § 1985(3) focuses not on scienter in relation to deprivation of rights, but an invidiously [class based] discriminatory animus.” Id.; see Burt v. Ferrese, 871 F.2d 14, 18 (3d Cir.1989); Pratt v. Thornburgh, 807 F.2d 355, 357 (3d Cir.1986), cert. denied, 484 U.S. 839, 108 S.Ct. 125, 98 L.Ed.2d 83 (1987); Rogin v. Bensalem Twpshp., 616 F.2d 680, 696 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). Discriminatory purpose is not presumed, intentional discrimination must be clearly shown. DeBotton, supra, at 482. Fourth, plaintiff must demonstrate that the conspirators committed an act in furtherance of conspiracy. In this regard, plaintiff must adduce proof that “there is some degree of relationship between the act done and object of the conspiracy.” Novotny v. Great Am. Federal Savings & Loan Ass’n., 584 F.2d 1235, 1246 n. 46 (3d Cir.1978); rev’d on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Finally, plaintiff must show that he was injured in his person or property, or that he has been deprived of having or exercising any right of citizenship. As stated previously, in examining plaintiffs claim under § 1985(3), I must first determine whether or not this provision reaches nonracial, politically motivated conspiracies. See Novotny, supra, at 1240. In United Bhd. of Carpenters et al. v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1982), the Supreme Court examined the legislative history of § 1985(3), and observed with respect to the aim of the statute that: ... Although we have examined with some care the legislative history that has been marshaled in support of the position that Congress meant to forbid wholly nonracial, but politically motivated conspiracies, we find" }, { "docid": "22108214", "title": "", "text": "the district court did not err in holding that Mark-Garner fails to state a colorable procedural due process claim. C. Sections 1985(3) and 1986 Mark-Garner’s final federal claims arise under two provisions of the Ku Klux Klan Act of 1871, 42 U.S.C. §§ 1985(3) and 1986 (1976). The purpose of this Act was to place each newly freed black “on an equal footing before the law with his former master.” Section 1985(3) establishes a cause of action against any person who enters into a private conspiracy for the purpose of depriving the claimant of the equal protection of the laws. Section 1986 is a companion to § 1985(3) and provides the claimant with a cause of action against any person who, knowing that a violation of § 1985 is about to be committed and- possessing power to prevent its occurrence, fails to take action to frustrate its execution. Because transgressions of § 1986 by definition depend on a preexisting violation of § 1985, if the claimant does not set forth a cause of action under the latter, its claim under the former necessarily must fail also. The Supreme Court’s most thorough discussion of these sections was in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). There, several black persons brought suit under § 1985(3) alleging that the defendants, a group of white Mississippians, conspired and acted to deprive the plaintiffs of their equal rights by beating and threatening to kill them. The Court rejected the defendants’ argument that the statute required state action, and interpreted it as covering purely private conspiracies as well. To effect Congress’ intent not to embrace all tortious conspiratorial interferences with the rights of others, however, the Court held that § 1985(3) applied only to private conspiracies predicated on “racial, or perhaps otherwise class-based, insidiously discriminatory animus.” We need not decide today whether § 1985(3) embraces private conspiracies to discriminate on the basis of factors other than race. At most, that statute proscribes private conspiracies to engage in discrimination that, but for the lack of state action, would violate the equal" }, { "docid": "17648851", "title": "", "text": "only with those deprivations of rights that are accomplished under the color of the law of ‘any State or Territory.’ ” Id. at 424, 93 S.Ct. at 606. Actions of federal officers are outside its proscriptions. See id. at 424-25, 93 S.Ct. at 606. McCord’s claim under 42 U.S.C. § 1985(3) is equally without merit. In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1970), the Court held that although section 1985 reaches private conspiracies as well as those involving state action, the language, legislative history, and constitutional basis of the statute indicate that a plaintiff under section 1985(3) must allege and prove “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102, 91 S.Ct. at 1798. Accord, e. g., Ellis v. Cassidy, 625 F.2d 227 at 229 (9th Cir. 1980). Plaintiff McCord cannot pretend that he was the object .of civil rights deprivation because of his race or membership in some other class. McCord also asserts that the defendants conspired with others to dissuade him from testifying in his own behalf before the grand jury and at his trial, thereby giving rise to a cause of action under 42 U.S.C. § 1985(2). The second half of section 1985(2) does not apply to McCord. Like section 1985(3), it specifies an intent to deny equal protection of the laws and draws its constitutional basis from section 5 of the fourteenth amendment, which gives Congress the power to legislate against obstructions of justice in a state. Such a construction avoids any question of Congress’s authority to enact this provision. See, e. g., Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir. 1976). B. McCord’s Cause of Action Under the First Clause of Section 1985(2) The requirement of discriminatory animus in actions under the first half of section 1985(2) presents a question of first impression in this circuit. Like the Third Circuit, “[w]e approach the perfidious syntax of § 1985(2) with some reserve for . . . there is a dearth of authority to light our way.” Brawer v. Horowitz, 535 F.2d at" }, { "docid": "22926796", "title": "", "text": "laws.” 42 U.S.C. § 1985. To prevail on a § 1985(3) claim, one must prove “ ‘(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.’ ” Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir.2003) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983)). Moreover, the Supreme Court has stated that “[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). In his complaint, brief in opposition to summary judgment, and appellate brief, Radvansky has failed to allege any facts sufficient to establish a conspiracy claim under § 1985(3). Radvansky has produced no evidence to demonstrate his arrest on the night of May 15 was in any way motivated by racial or other class-based animus. See Bass, 167 F.3d at 1051 (upholding dismissal of plaintiffs conspiracy claim, finding failure to show that police officers’ use of excessive force was motivated by any invidious class-based animus). Because Radvansky has not demonstrated either a conspiracy or invidiously discriminatory animus, the district court’s grant of summary judgment with regards to the § 1985 count is affirmed. Section 1986 establishes a cause of action against anyone, who has knowledge of a conspiracy under § 1985, and “having-power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.” 42 U.S.C. § 1986. Rad- vansky argues that because “Appellees all had knowledge of the wrongful acts, liability is imposed pursuant to 42 U.S.C. § 1986.” Appellant’s Br. at 59. But “[w]here plaintiff has" } ]

[ { "docid": "13546579", "title": "", "text": "court that Plaintiff could have raised these issues in the proceedings before Commerce regarding the type of investigation Commerce undertook and its deviation from the traditional respondent-selection methodology. Precisely because Plaintiff did not contest these issues, this Court will not consider whether basing the investigation on quotas versus actual exports was correct. To do so would preclude the Court from the benefit of the analysis and consideration by the administrative agency. Plaintiff also asserts that the Department’s action frustrates the remedial purpose of the antidumping law. Commerce counters that, under these unusual circumstances, the inclusion of Prosperity’s best infor mation available rate in the calculation of the “all others” rate would have amounted to punishment of innocent parties and, therefore, would not provide for the remedial relief contemplated by the antidumping law. Defendant’s Brief at 17-18. As the courts have long recognized, the antidumping law is a remedial statute. Chaparral Steel Co. v. United States, 8 Fed. Cir. (T) 101, 109, 901 F.2d 1097, 1103-04 (1990). Thus, dumping duties are remedial, not penal, in nature. They “are ’additional duties’ to equalize competitive conditions between the exporter and American industries affected. ” Imbert Imports, Inc. v. United States, 67 Cust. Ct. 569, 576, 331 F. Supp. 1400, 1406 n.10 (1971), aff'd 60 CCPA 123, CAD 1094, 475 F.2d 1189 (1973) (citing C.J. Tower & Sons v. UnitedStates, 21 CCPA 417, T.D. 46, 943, 71 F.2d 438 (1934)). In Badger-Powhatan v. United States, 10 CIT 241, 250, 633 F. Supp. 1364, 1373 (1986), the Court concluded “that the statutory scheme [of the antidumping laws] requires that estimated an-tidumping duties be as closely tailored to actual antidumping duties as is reasonable given data available to ITA at the time the antidumping order is issued.” (footnote omitted). This Court found in Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 526, 717 F. Supp. 834, 837 (1989), that the exclusion of best information available rates from the “all others” rate, when they do not appear to be representative of the pricing practices in the country under investigation, may be reasonable because the" } ]

[ { "docid": "18671232", "title": "", "text": "where appropriate, may enjoin liquidation pending the outcome of the litigation. See 19 U.S.C. § 1516a(c)(2) (1982); S. Rep. 96-249, 96th Cong., 1st Sess. 252-53 (1979), reprinted in 1979 U.S. Code Cong. & Admin. News 381, 638. In Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983), it was held that liquidation of entries, the subject of a challenged § 751 annual review determination, may constitute irreparable injury. In the context of an annual review, only one year’s entries are subject to the determination. If the movant ultimately succeeds in challenging the results, the only remedy available is to liquidate the entries for that period at the corrected dumping rate. If the entries were liquidated prior to the court upholding the claim, there would be no entries upon which revised margins could be imposed. Absent an injunction, the domestic industry’s only remedy would be eliminated. 710 F.2d at 810. However, where the action contests either negative injury or negative dumping determinations in an investigation, not annual review results, recent cases have declined to hold that liquidation alone is sufficient to establish irreparable harm. American Spring Wire Corp v. United States, 7 CIT 2, 578 F. Supp. 1405 (1984); accord Bomont Industries v. United States, 10 CIT 431, 638 F. Supp. 1334 (1986); U.S. Steel v. United States, 9 CIT 333, 614 F. Supp. 1241 (1985). If the agency’s decision is overturned, then unliquidated and future entries may still be subject to corrected antidumping duties. Bomont, 10 CIT at 435, 638 F. Supp. at 1338; American Spring Wire, 7 CIT at 5, 578 F. Supp. at 1407. In these situations as opposed to annual reviews, which focus on a discrete time period, the movant still has the opportunity to obtain meaningful judicial review. Even though some entries will be liquidated without additional duties, appropriate relief may be fashioned prospectively. American Spring Wire, 7 CIT at 5, 578 F. Supp. at 1407. The opportunity for adequate prospective relief weighs against granting the injuction. See National Juice Products Ass’n v. United States, 10 CIT 48, 53, 628 F. Supp. 978," }, { "docid": "14003017", "title": "", "text": "that the ITC’s construction of the statute to focus on current imports is reasonable. Antidumping and countervailing duties are meant “to afford prospective relief to the domestic industry which would otherwise experience further injury due to the continued importation of unfairly traded merchandise.” Seafoods II, 19 Ct. Int’l Trade at 44 n. 22. Antidumping and countervailing duty laws “are not penal, retaliatory, or compensatory”; rather, they “are intended to equalize particular aspects of future competitive conditions between foreign exporters to the United States and the domestic industry.” Id. (emphasis added) (citing Imbert Imports, Inc. v. United States, 67 Cust.Ct. 569, 331 F.Supp. 1400, 1406 n. 10 (1971) (citation omitted), affd, 60 C.C.P.A. 123, 475 F.2d 1189 (Cust. & Pat.App.1973)). In reviewing other determinations, this Court has maintained that “the [ITC] permissibly focuses on the more recent ... period in evaluatihg the causal effects of the subject imports.” Taiwan Semiconductor Indus. Ass’n v. United States, 93 F.Supp.2d 1283, 1294 n. 13 (CIT 2000) (citing Seafoods II, 19 Ct. Int’l Trade at 48) (emphasis added), aff'd, 266 F.3d 1339 (Fed.Cir.2001). Further, this Court has held that the ITC “may of course permissibly focus its analysis on a specific time frame within the POI.” ALTX, Inc. v. United States, 167 F.Supp.2d 1353, 1363 (CIT 2001) (citations omitted); see also, Angus Chem. Co. v. United States, 944 F.Supp. 943, 947-948 (CIT 1996) (stating that the ITC’s “decision to focus on [current] data and make only limited comparisons [of earlier] data fell well within its discretion” (citation omitted)), aff'd, 140 F.3d 1478 (Fed.Cir.1998); Chaparral Steel, 901 F.2d at 1103 (upholding the ITC’s focus on current unfair imports, versus those earlier in the period of investigation, in its cumulation analysis because such construction was “in accord with the remedial purpose of duties which are intended merely to prevent future harm to the domestic industry by reason of unfair imports that are presently causing material injury” (citation omitted)). In Seafoods II, the Court held that the ITC must examine data, within a time frame as close as possible to vote day in making its present material injury" }, { "docid": "4780943", "title": "", "text": "States, 8 CIT 86, 98, 593 F. Supp. 405, 414 (1984); Rhone Poulenc, S.A. v. United States, 8 CIT 47, 55, 592 F. Supp. 1318, 1326 (1984); Sprague Elec. Co. v. United States, 2 CIT 302, 310, 529 F. Supp. 676, 682 (1981). This is especially true where the facts allegedly ignored were presented to the Commission at a open hearing. While it is an abuse of discretion for an agency to fail to consider an issue raised by the record evidence, Timken Co. v. United States, 10 CIT 86, 630 F. Supp. 1327, 1337-38 (1986), the fact that certain information is not discussed in a Commission determination does not establish that the Commission failed to consider that information because the Commission is not obligated to address each and every argument advanced by a party to an investigation. Empire Plow Co. v. United States, 11 CIT 847, 675 F. Supp. 1348, 1354 (1987); British Steel Corp., 8 CIT at 98, 593 F. Supp. at 414. Congress did not mandate the Commission to discuss every facet of its investigation, but only \"material issues of law or fact.” Jeannette Sheet Glass Corp. v. United States, 9 CIT 154, 161, 607 F. Supp. 123, 130 (1985), appeal dismissed, 803 F.2d 1576 (Fed. Cir. 1986), vacated in part, 11 CIT 10, 654 F. Supp. 179 (1987). See also H.R. Rep. 153, 96th Cong., 1st Sess. 27 (1979), reprinted in 1979 U.S. Code Cong. & Admin. News 381, 665, 685. When a specific issue is material to the Commission’s determination, \"then of course the Commission must state its findings of fact and conclusions of law on that aspect of its investigations.” Jeannette Sheet, 9 CIT at 162, 607 F. Supp. at 130. The Court finds the Commission’s determinations on the threat of material injury to be supported by substantial evidence on the record as a whole and according to law. C. Effect of Commissioners’ Additional Views NAMM’s remaining issues concern the legal effect of two Commissioner’s additional views made for the sake of argument to state that even if the domestic industry was injured it" }, { "docid": "4780928", "title": "", "text": "Potato Council v. United States, 9 CIT 460, 463, 617 F. Supp. 1088, 1091 (1985); S. Rep. 249, 96th Cong., 1st Sess. 74-75, reprinted in 1979 U.S. Code Cong. & Admin. News 381, 460. It is not this Court’s function to decide that, were it the Commission, it would have made another decision on the basis of the evidence. Matsushita Elec. Indus. Co., 3 Fed. Cir. (T) at 54, 750 F.2d at 936. However, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488 (1951); Alberta Pork Producers’ Marketing Bd. v. United States, 11 CIT 563, 669 F. Supp. 445, 463 (1987). A. The Material Injury Determinations NAMM contends both determinations that a domestic industry was not materially injured are invalid because they are not supported by substantial evidence on the record as a whole. The Commission is directed to make final determinations of whether an industry in the United States is materially injured or threatened with material injury. 19 U.S.C. § 1673d(b)(l)(A) (1982). Congress defined \"material injury” as \"harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A) (1982). See also S. Rep. No. 1298, 93d Cong., 2d Sess. 180 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7186, 7317 (\"Injury must be a harm which is more than frivolous, inconsequential, insignificant, or immaterial”). The antidumping law is not punitive in nature, but is remedial and designed to protect industries in the United States from sales of imported merchandise at less than fair value which either caused or threatened to cause material injury. Badger-Powhatan v. United States, 9 CIT 213, 216-17, 608 F. Supp. 653, 656 (1985). As part of its injury determination the Commission considers the impact of imports on domestic producers of like products. 19 U.S.C. § 1677(7)(B)(iii) (1982); 19 C.F.R. § 207.26(a)(3) (1988). In examining the impact of less than fair value imports on a domestic industry, the Commission shall evaluate all relevant economic factors which have a bearing on the state of" }, { "docid": "22083184", "title": "", "text": "the context of production operations within the United States.... 19 U.S.C. § 1677(7)(B)(i) (1988). Additional-, ly, the Commission “may consider such other economic factors as are relevant to the determination.” 19 U.S.C. § 1677(7)(B)(ii) (1988). However, a showing that economic harm to domestic industry occurred when LTFV imports are also on the market is not enough to show that the imports caused a material injury. See United States Steel Group v. United States, 96 F.3d 1352, 1358 (Fed.Cir.1996) (“[T]o claim that the temporal link between these events proves that they are causally related is ... fallacy_”). An affirmative injury determination requires both (1) present material injury and (2) a finding that the material injury is “by reason of’ the subject imports. Chaparral Steel Co. v. United States, 901 F.2d 1097, 1104 (Fed.Cir.1990) (quoting American Spring Wire Corp. v. United States, 590 F.Supp. 1273, 1276 (Ct. Int’l Trade 1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985)); see also Trent Tube Div. v. Avesta Sandvik Tube AB, 975 F.2d 807, 814 (Fed.Cir.1992) (affirming, the Court of International Trade’s remand to the Commission when conclusions on material injury were based on factors that related “almost exclusively to the existence, rather than the causation, of the material injury”). Hence, the anti-dumping statute mandates a showing of causal — not merely temporal — connection between the LTFV goods and the material injury. Because this appeal hinges on whether the subject imports caused the injury, this court reviews the record evidence to determine whether substantial evidence supports the Commission’s determination that the domestic industry was injured by reason of the subject imports. Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Suramerica, 44 F.3d at 985 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). However, the substantial evidence standard requires more than mere assertion of “ ‘evidence which in and of itself justified [the Commission’s determination], without taking into account contradictory evidence or evidence from which conflicting inferences could be" }, { "docid": "4780929", "title": "", "text": "with material injury. 19 U.S.C. § 1673d(b)(l)(A) (1982). Congress defined \"material injury” as \"harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A) (1982). See also S. Rep. No. 1298, 93d Cong., 2d Sess. 180 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7186, 7317 (\"Injury must be a harm which is more than frivolous, inconsequential, insignificant, or immaterial”). The antidumping law is not punitive in nature, but is remedial and designed to protect industries in the United States from sales of imported merchandise at less than fair value which either caused or threatened to cause material injury. Badger-Powhatan v. United States, 9 CIT 213, 216-17, 608 F. Supp. 653, 656 (1985). As part of its injury determination the Commission considers the impact of imports on domestic producers of like products. 19 U.S.C. § 1677(7)(B)(iii) (1982); 19 C.F.R. § 207.26(a)(3) (1988). In examining the impact of less than fair value imports on a domestic industry, the Commission shall evaluate all relevant economic factors which have a bearing on the state of the industry, including, but not limited to— (I) actual and potential decline in output, sales, market share, profits, productivity, return on investments, and utilization of capacity, (II) factors affecting domestic prices, and (III) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment. 19 U.S.C. § 1677(7)(C)(iii) (1982); 19 C.F.R. § 207.26(b)(3) (1988). The Commission’s determinations must be based upon an independent evaluation of the factors with respect to the unique economic situation of each product and industry under investigation. Alberta Pork Producers’ Marketing Bd., 11 CIT at 579, 669 F. Supp. at 461. Neither the presence nor the absence of any factor listed in the statute is decisive with respect to whether an industry is materially injured, and the significance to be assigned to a particular factor is for the Commission to decide. S. Rep. No. 249, 96th Cong., 1st Sess. 88, reprinted in 1979 U.S. Code Cong. & Admin. News 474; see also H.R. Rep. No. 317, 96th Cong., 1st Sess. 46 (1979); 19 C.F.R." }, { "docid": "14003008", "title": "", "text": "Br.”) at 42.) Defendant contends that the Court has reasoned that the anti-dumping and countervailing duty laws “ ‘are intended merely to prevent future harm to the domestic industry by reason of unfair imports that are presently causing material injury.’ ” (Def.’s Br. at 43 (quoting Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103 (Fed.Cir.1990) (in turn citing S. Rep. No. 96-249, at 87 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 473)).) Defendant asserts that older information “ ‘provide[s] a historical frame of reference against which a ‘present’ (i.e., as recent to vote day as possible ...) material injury determination is to be made.’ ” (Id. (quoting Seafoods II, 19 Ct. Int’l Trade at 44 n. 22).) Defendant asserts that the ITC’s focus on current imports is consistent with the antidumping and countervailing duty statutes’ focus on present material injury. (Id.) Second, Defendant contends that contrary to Plaintiffs’ assertions, the statute does not require the ITC to. reach an affirmative injury determination based on the lingering effects of earlier imports. (Id. at 87.) Defendant contends that “the statute provides a focus on current imports and their current impact in determining whether the [domestic] industry is currently materially injured.” (Id. at 88.) Defendant quotes Seafoods II, stating that “ ‘any adverse lingering effects of past material injury ... are insufficient to support an affirmative injury determination’ ” unless those lingering effects are “ ‘themselves a source of present material injury to the domestic industry.’ ” (Id. (quoting Sea-foods II, 19 Ct. Int’l Trade at 48).) Defendant contends that present material injury from the lingering effects of earlier imports was not demonstrated in the record. (Id. at 87-88.) Defendant asserts that the Court’s recognition in Seafoods II, that the effects of earlier imports may support an affirmative injury determination, did not create a presumption that lingering effects cause present material injury. (Id. at 88.) Defendant concludes that the ITC’s determination that subject imports were not causing present material injury is supported by substantial evidence and is in accordance with law. (Id. at 88-89.) D. Defendant-Intervenors’ Contentions. Defendant-Intervenors contend that Plaintiffs’ argument" }, { "docid": "22083183", "title": "", "text": "evidence on the record,. or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Although technically “reviewing anew the [Commission’s] determination, this court will not ignore the informed opinion of the Court of International Trade. That court reviewed the record in considerable detail. Its opinion deserves due respect.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed.Cir.1994). Applying an analytical framework outlined in Title 19, the Commission determines whether LTFV imports materially injure a domestic industry. See 19 U.S.C. § 1673d(b)(l) (1988). Section 1677(7)(A) defines “material injury” as a “harm which is not inconsequential, immaterial, or unimportant.” 19' U.S.C.' § 1677(7)(A) (1988). When determining whether imports have caused material injury to a domestic industry, the Commission evaluates: (I) the volume of imports of the merchandise that is the subject of the investigation, (II) the effect of imports of that merchandise on prices in the United States for domestic like products, and (III) the impact of imports of such merchandise on domestic producers of domestic like products, but only in the context of production operations within the United States.... 19 U.S.C. § 1677(7)(B)(i) (1988). Additional-, ly, the Commission “may consider such other economic factors as are relevant to the determination.” 19 U.S.C. § 1677(7)(B)(ii) (1988). However, a showing that economic harm to domestic industry occurred when LTFV imports are also on the market is not enough to show that the imports caused a material injury. See United States Steel Group v. United States, 96 F.3d 1352, 1358 (Fed.Cir.1996) (“[T]o claim that the temporal link between these events proves that they are causally related is ... fallacy_”). An affirmative injury determination requires both (1) present material injury and (2) a finding that the material injury is “by reason of’ the subject imports. Chaparral Steel Co. v. United States, 901 F.2d 1097, 1104 (Fed.Cir.1990) (quoting American Spring Wire Corp. v. United States, 590 F.Supp. 1273, 1276 (Ct. Int’l Trade 1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985)); see also Trent Tube Div. v. Avesta Sandvik Tube AB, 975 F.2d 807, 814 (Fed.Cir.1992)" }, { "docid": "4780944", "title": "", "text": "of its investigation, but only \"material issues of law or fact.” Jeannette Sheet Glass Corp. v. United States, 9 CIT 154, 161, 607 F. Supp. 123, 130 (1985), appeal dismissed, 803 F.2d 1576 (Fed. Cir. 1986), vacated in part, 11 CIT 10, 654 F. Supp. 179 (1987). See also H.R. Rep. 153, 96th Cong., 1st Sess. 27 (1979), reprinted in 1979 U.S. Code Cong. & Admin. News 381, 665, 685. When a specific issue is material to the Commission’s determination, \"then of course the Commission must state its findings of fact and conclusions of law on that aspect of its investigations.” Jeannette Sheet, 9 CIT at 162, 607 F. Supp. at 130. The Court finds the Commission’s determinations on the threat of material injury to be supported by substantial evidence on the record as a whole and according to law. C. Effect of Commissioners’ Additional Views NAMM’s remaining issues concern the legal effect of two Commissioner’s additional views made for the sake of argument to state that even if the domestic industry was injured it was not \"by reason of’ the European and Japanese imports. After reaching negative determinations under 19 U.S.C. § 1673d(b)(l) (1982) that a United States industry was not materially injured or threatened with material injury, the Commission did not reach the issue of causation in either of the two determinations. See Badger-Powhatan v. United States, 9 CIT 213, 217, 608 F. Supp. 653, 657 (1985); American Spring Wire Corp. v. United States, 8 CIT 20, 21-22, 590 F. Supp. 1273, 1276 (1984), aff’d sub nom. Armco, Inc. v. United States, 3 Fed. Cir. (T) 123, 760 F.2d 249 (1985). Having found the 4-1 and 5-0 determinations that no industry in the United States is materially injured or threatened with material injury to be supported by substantial evidence and according to law, the Court does not reach plaintiffs’ arguments concerning the validity of these additional views on causation. A defect in a Commissioner’s additional views generally does not affect the viability of the majority determination where the proper number of Commissioners have participated and the allegedly defective" }, { "docid": "4384221", "title": "", "text": "II of the opinion. See also, Certain Steel Products from Spain, Inv. Nos. 701-TA-155-163 (Preliminary) USITC Pub. No. 1255, at 8 and n. 15; Certain Steel Products from the Republic of Korea, Inv. Nos. 701-TA-170-173 (Preliminary) USITC Pub. No. 1261 (1982) at 5 and n. 13. A few of the relevant provisions, with footnotes omitted, read as follows: Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade (as reprinted in the Message from the President of the United States, Transmitting the Texts of the Trade Agreements Negotiated in the Tokyo Round of the Multilateral Trade Negotiations, Pursuant to Section 102 of the Trade Act of 1974) Part I Article 1 — Application of Article VI of the General Agreement Signatories shall take all necessary steps to ensure that the imposition of a countervailing duty on any product of the territory of any signatory imported into the territory of another signatory is in accordance with the provisions of Article VI of the General Agreement and the terms of this Agreement. Article 6 — Determination of injury 4. It must be demonstrated that the subsidized imports are, through the effects of the subsidy, causing injury within the meaning of this Agreement. There may be other factors which at the same time are injuring the industry, and the injuries caused by other factors must not be attributed to the subsidized imports. S. Rep. No. 96-249, 96th Cong., 1st Sess. (1979) 38. On this point it must be noted that Congress did not give a complete implementation to the International Antidumping Code. See, S. Rep. No. 96-249, 96th Cong. 1st Sess. (1979) 40. The relevant portion of the legislative history reads as follows: Under the present Act, the Secretary of the Treasury must complete his entire investigation as to sales at less than fair value before the matter can be referred to the International Trade Commission for its injury determination. The Committee felt that there ought to be a procedure for terminating investigations at an earlier stage where there was ho reasonable indication that" }, { "docid": "18678475", "title": "", "text": "ITC’s interpretation and application of the cumulation statute. Prior to enactment of the present statute, Congress, in the Trade Act of 1974, recognized that although cumulation was not required as a matter of law, it could be applied by the ITC on a case by case basis. See S. Rep. No. 1298, 93rd Cong., 2d Sess. 180 (1974). In 1979, Congress made substantial changes and revisions to the antidumping and countervailing duty statutes, but noted that ITC determinations of injury made pursuant to the 1974 Act were, on the whole, \"consis tent with the material injury criterion of [the 1979 Act.]” See S. Rep. No. 249, 96th Cong., 1st Sess. 87 (1979). The Trade and Tariff Act of 1984, however, amended the law to provide specific circumstances in which the ITC is required to cumulate imports before it determines the existence of material injury or threat of material injury to a domestic industry. See 19 U.S.C. § 1677(7)(C). This change was intended to eliminate inconsistencies in the interpretation and application of the law, and to insure that the injury test adequately addressed simultaneous unfair imports. See H.R. Rep. No. 725, 98th Cong., 2d Sess. at 36-37. In support of its motion for assignment to a three-judge panel, plaintiffs refer to the increasing number of antidumping and countervailing duty investigations from two or more countries. In addition, plaintiffs assert that \"this is a case of first impression which will affect how innumerable antidumping proceedings are conducted.” In the National Corn Growers case, it was noted that the assertion of \"questions of first impression, without more, would not necessarily warrant consideration by a three-judge panel.” National Corn Growers Ass’n v. Baker, 10 CIT 517, 643 F. Supp. 626, 631 (1986). Indeed, it has been stated that cases of novel or first impression are \"almost commonplace,” and are usually decided by a single-judge court. However, if there are \"special factors or exceptional circumstances,” and other broad or significant implications in the administration or interpretation of the customs laws, designation of a three-judge panel will further the constitutional and congressional purposes set forth in" }, { "docid": "18899738", "title": "", "text": "Supp. 997 (1980); SCM v. United States, 84 Cust. Ct. 227, C.R.D. 80-2, 487 F. Supp. 96 (1980). That Congress intended traditional administrative law principles be applicable to judicial review of the Commission’s preliminary determinations under the Antidumping Act is made manifestly clear in the legislative history of the Trade Agreements Act of 1979: Section 516A would make it clear that traditional administrative law principles are to be applied in review of antidumping * * * duty decisions where by law Congress has entrusted the decision-making authority in a specialized, complex economic situation to administrative agencies. Thus, review of any determination listed in subsection (a)(1) [which includes 'reasonable indication’ determinations by the Commission] would be to ascertain whether there was a rational basis in fact for the determination by the administrative decision-maker. S. Rep. No. 96-249, 96th Cong., 1st Sess. 252 (1979), reprinted in 1979 U.S. Code Cong. & Ad. News 381, 638. See also American Lamb, 785 F. 2d at 1004. The purpose of a preliminary injury determination is to \"eliminate unnecessary and costly investigations which are an administrative burden and an impediment to trade.” American Lamb, 785 F. 2d at 1002-03 (quoting S. Rep. No 1298, 93rd Cong., 2d Sess. 171). By prescribing the \"arbitrary and capricious” standard of review, Congress obviously intended that the Commission shall apply its expertise and judgment at the preliminary stage of an anitdumping investigation to determine whether the investigation should contin ue; and further intended that the court should not exercise its review powers to compel the continuation of an investigation that the Commission has rationally determined to be clearly lacking in substantive merit. So far as pertinent to the Commission’s preliminary determinations respecting material injury or threat of material injury to the regular quality thin sheet glass industry, the Commission majority (Chairman Eckes and Commissioner Haggart) made the following findings of fact: 1. Throughout the period of investigation, production of regular quality thin sheet glass was profitable and the profits remained comparatively stable. USITC Pub. 1376 at 8. 2. Domestic production, shipments and capacity utilization rose from 1980 to 1981, but" }, { "docid": "14003007", "title": "", "text": "several differences between AD/CVD relief and Section 201 relief including: 1) several countries subject to these AD/CVD investigations were exempt from the Section 201 tariffs; 2) numerous products covered by these AD/CVD investigations are not covered by the Section 201 tariffs; and 3) Section 201 tariffs expire in three years whereas Title VII duties can last indefinitely. (Id. at 26.) Domestic Integrated Producers contend that these differences should have precluded the ITC from using the Section 201 relief in its analysis. Id. Domestic Integrated Producers conclude that the ITC’s final determination is not in accordance with law because the ITC applied an incorrect causation standard, failed to consider earlier imports, and improperly considered the Section 201 relief. (Id. at 28-29.) C. Defendant’s Contentions. First, Defendant contends that Plaintiffs’ assertions regarding the ITC’s focus on current imports “ignores that statute’s remedial purpose, the prospective application of duties and the [ITC’s] concomitant discretion to rely on current data.” (Mem. of Def. U.S. Int’l Trade Comm’n in Opp’n to Pis.’ Mot. for J. on the Agency R. (“Def.’s Br.”) at 42.) Defendant contends that the Court has reasoned that the anti-dumping and countervailing duty laws “ ‘are intended merely to prevent future harm to the domestic industry by reason of unfair imports that are presently causing material injury.’ ” (Def.’s Br. at 43 (quoting Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103 (Fed.Cir.1990) (in turn citing S. Rep. No. 96-249, at 87 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 473)).) Defendant asserts that older information “ ‘provide[s] a historical frame of reference against which a ‘present’ (i.e., as recent to vote day as possible ...) material injury determination is to be made.’ ” (Id. (quoting Seafoods II, 19 Ct. Int’l Trade at 44 n. 22).) Defendant asserts that the ITC’s focus on current imports is consistent with the antidumping and countervailing duty statutes’ focus on present material injury. (Id.) Second, Defendant contends that contrary to Plaintiffs’ assertions, the statute does not require the ITC to. reach an affirmative injury determination based on the lingering effects of earlier imports. (Id. at 87.) Defendant" }, { "docid": "18678474", "title": "", "text": "Duties, Imposts and Excises shall be uniform throughout the United States.” U.S. Const. Art. I, § 8; see Re, Litigation Before the United States Court of International Trade, 19 U.S.C.A. at vii (West Supp. 1986). As stated in the National Corn Growers case, the \"appointment of a three-judge panel ensures that the decision reached will reflect an institutional consensus, and thereby serves to further the statutory and constitutional mandate of uniformity of the international trade laws.” National Corn Growers, 643 F. Supp. at 630-31. It is also pertinent to recall that, in addition to settling the controversy between the parties, the judicial decision has precedential value. National Corn Growers, 643 F. Supp. at 631. Hence, since the consolidated view of a three-judge panel will reflect an institutional consensus, its decision is likely to be more acceptable and persuasive to individual judges of this Court as well as to judges of the Court of Appeals for the Federal Circuit who may be faced with a similar issue. In this case, a significant legal question is the ITC’s interpretation and application of the cumulation statute. Prior to enactment of the present statute, Congress, in the Trade Act of 1974, recognized that although cumulation was not required as a matter of law, it could be applied by the ITC on a case by case basis. See S. Rep. No. 1298, 93rd Cong., 2d Sess. 180 (1974). In 1979, Congress made substantial changes and revisions to the antidumping and countervailing duty statutes, but noted that ITC determinations of injury made pursuant to the 1974 Act were, on the whole, \"consis tent with the material injury criterion of [the 1979 Act.]” See S. Rep. No. 249, 96th Cong., 1st Sess. 87 (1979). The Trade and Tariff Act of 1984, however, amended the law to provide specific circumstances in which the ITC is required to cumulate imports before it determines the existence of material injury or threat of material injury to a domestic industry. See 19 U.S.C. § 1677(7)(C). This change was intended to eliminate inconsistencies in the interpretation and application of the law, and to" }, { "docid": "22695006", "title": "", "text": "1673a(a) of this title, shall make a determination, based upon the best information available to it at the time of the determination, of whether there is a reasonable indication that— (1) an industry in the United States— (A) is materially injured, or (B) is threatened with material injury, or (2) the establishment of an industry in the United States is materially retarded, by reason of imports of the merchandise which is the subject of the investigation by the administering authority. If that determination is negative, the investigation shall be terminated. 19 U.S.C. § 1673b(a) (emphasis supplied). The legislative history supports the statutory statement that ITC should use “the best information available” in applying the “reasonable indication” standard. Congress introduced that standard when it added § 201(c)(2) to the Antidumping Act of 1921, Ch. 14, § 201, 42 Stat. 9, 11 (1921), in the Trade Act of 1974, Pub.L. No. 93-618, § 321(a)(2), 88 Stat. 1978, 2043-44 (1974) (1974 Act). When Congress repealed the Antidumping Act of 1921 in the Trade Agreements Act of 1979, Pub.L. No. 96-39, § 106(a), 93 Stat. 144, 193 (1979) (1979 Act), it adopted the “reasonable indication” standard for countervailing and antidumping preliminary determinations. 19 U.S.C. §§ 1671b(a), 1673b(a). Congress intended that the Commission apply the standard “in essentially the same manner” as it applied the standard under the 1974 Act. S.Rep. No. 249, 96th Cong., 1st Sess. 66, reprinted in 1979 U.S.Code Cong. & Ad.News 381, 449, 452. The purpose of a preliminary injury determination is to “eliminate unnecessary and costly investigations which are an administrative burden and an impediment to trade.” S. Rep. No. 1298, 93rd Cong., 2d Sess. 171, reprinted in 1974 U.S.Code Cong. & Ad.News, 7186, 7308. When the procedure was adopted in the 1979 Act, the law became “more clearly consistent with the international agreement which permits the imposition of provisional measures, that is, suspension of liquidation and the posting of a cash deposit, bond or other security on each entry subject to the suspension, only after an affirmative preliminary determination has been made that there are sales at less than" }, { "docid": "14003016", "title": "", "text": "or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778 (footnote omitted). In this case, the statute is “silent ... with respect to the specific issue,” id., of whether the ITC may permissibly focus on current imports in determining material injury. The statute states that injury must be “by reason of imports,” and makes no mention of whether the ITC’s determination must rest on current imports, earlier imports, or both. 19 U.S.C. §§ 1671d(b)(l), 1673d(b)(l). It is well-settled that the material injury statute requires that the domestic industry be suffering present material injury. Chaparral Steel, 901 F.2d at 1104 (citations omitted). However, Plaintiffs contend that the ITC cannot rest its present material injury determination on the volume, price effects, and impact of the current subject imports. In light of the purpose of the AD/CVD laws and the discretion given to the ITC to focus on the most recent data, this Court holds that the ITC’s construction of the statute to focus on current imports is reasonable. Antidumping and countervailing duties are meant “to afford prospective relief to the domestic industry which would otherwise experience further injury due to the continued importation of unfairly traded merchandise.” Seafoods II, 19 Ct. Int’l Trade at 44 n. 22. Antidumping and countervailing duty laws “are not penal, retaliatory, or compensatory”; rather, they “are intended to equalize particular aspects of future competitive conditions between foreign exporters to the United States and the domestic industry.” Id. (emphasis added) (citing Imbert Imports, Inc. v. United States, 67 Cust.Ct. 569, 331 F.Supp. 1400, 1406 n. 10 (1971) (citation omitted), affd, 60 C.C.P.A. 123, 475 F.2d 1189 (Cust. & Pat.App.1973)). In reviewing other determinations, this Court has maintained that “the [ITC] permissibly focuses on the more recent ... period in evaluatihg the causal effects of the subject imports.” Taiwan Semiconductor Indus. Ass’n v. United States, 93 F.Supp.2d 1283, 1294 n. 13 (CIT 2000) (citing Seafoods II, 19 Ct. Int’l Trade at 48) (emphasis added), aff'd, 266" }, { "docid": "18675124", "title": "", "text": "Mexican with Japanese Imports: Plaintiffs next challenge the Commission majority’s cumulation of imports of cement from Mexico with imports from Japan for purposes of assessing material injury. Title 19 of United States Code, Section 1677(7)(B) (1988) provides that in connection with its material injury investigation, the Commission shall consider, among other factors, the volume of imports and the effect of the imported merchandise on prices in the United States for like products. Subsection (iv) of Title 19 United States Code Section 1677(7)(C) (Supp. III 1991) further specifies that when evaluating volume and price effects: the Commission shall cumulatively assess the volume and effect of imports from two or more countries of like products subject to investigation if such imports compete with each other and with like products of the domestic industry in the United States market. The seminal case in this area, Chaparral Steel Co. v. United States, 8 Fed. Cir. (T) 101, 106, 901 F.2d 1097, 1101 (1990), specified that “[t]o include imports in the cumulation equation, the statute requires they be ‘subject to investigation,’ ‘compete’ with like products, and implies that they be marketed ‘reasonably coincident’ in time * * Plaintiffs challenge the Commission majority’s cumulation of imports from Mexico with Japanese imports on grounds that Mexican imports were not subject to investigation, the Mexican investigation concerned a different regional industry than the present action, and finally that Mexican imports must also be cumulated when determining whether imports were sufficiently concentrated in Southern California. Because the court determines that substantial evidence does not support the Commission majority’s determination that imports of Mexican cement were subject to investigation, plaintiffs’ remaining challenges to cumulation need not be addressed by the court. Plaintiffs rest their assertion that Mexican imports of cement were not properly subject to investigation upon Chaparral Steel Co. v. United States, 901 F.2d at 1097, and Chr. Bjelland Seafoods A/C (Now Norwegian Salmon A/S) v. United States, No. 92-196 (CIT October 23, 1992), appeal docketed, No. 93-1235 (Fed. Cir. Mar. 4, 1993) (“Norwegian Salmon”). They argue that the Federal Circuit and this court abrogated the grounds upon which" }, { "docid": "15704980", "title": "", "text": "causation prerequisite to an affirmative injury determination is satisfied if the subsidized imports contribute, even minimally, to the conditions of the domestic industry, and the Commission is precluded from weighing the causes of injury. Thus, S. Rep. No. 249, 96th Cong., 1st Sess. 57 (1979) states: Current law does not, nor will section 705, contemplate that the effects from the subsidized imports be weighed against the effects associated with other factors (e.g., the volume of prices of nonsubsidized imports, contraction in demand or changes in patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology, and the export performance and development and productivity of the domestic industry) which may be contributing to overall injury to an industry. Nor is the issue whether subsidized imports are the principal, a substantial, or a significant cause of material injury. Any such requirement has the undesirable result of making relief more difficult to obtain for industries facing difficulties from a variety of sources; such industries are often the most vulnerable to subsidized imports. [Emphasis added.] See also H.R. Rep. No. 96-317, 96th Cong., 1st Sess. 47 (1979). As the legislative history makes clear, imports from a particular country need not be the sole or even principal cause of material injury, but need only be a contributing cause. Since the test of causation is whether the imports from a particular country are contributing to the injury being suffered by the domestic industry, plaintiffs’ correlation analysis is flawed due to the fact that a significant volume of imports can contribute to price depression, whether that volume happens to be increasing or decreasing during a particular period of time. The Court finds there is substantial evidence that the significant volume of imports of stainless steel plate from the United Kingdom was a contributing factor to the price depression experienced by the domestic industry. While the alleged absence of correlation between increased volume of imports and declining prices does not alone negate that material injury to the industry in the United States is not causally related to the imports, the" }, { "docid": "18613799", "title": "", "text": "questionnaire data for some 163 domestic growers. However, plaintiffs presentation is not conclusive that any errors are \"so gross as to invalidate the * * * [ITC’s] analysis or the conclu sions following from it”, particularly where, as here, the Commission relies on a supportable view of the industry as a whole. This being the case, the court concludes that the challenged ITC negative final determination is supported by substantial evidence on the record and otherwise in accordance with law. Plaintiffs motion for judgment on the agency record must therefore be denied. Judgment will enter accordingly. 49 Fed. Reg. 30,765 (Aug. 1,1984). This final determination is the focus of the actions docketed under CIT Nos. 84-08-01215 and 84-10-01447. One commissioner did not participate in the determination. See Pub. 1575 at 1, n. 2. Plaintiff Roses, Incorporated’s Brief in Support of its Motion for Judgment on the Agency Record (“Plaintiffs Brief’), p. 60. Id. at 103. USX Corp. v. United States, 11 CIT 82, 84, 655 F. Supp. 487, 489 (1987). The ITC determined that the \"January-March period is the period of the year when rose growers sell most of their production in terms of dollar value * * * [and] are able to command the highest prices because of high de» mand resulting from such holidays as Valentine’s Day.” Pub. 1575 at 8, n. 21. See 19 U.S.C. § 1677(7XF). H.R. Rep. No. 1156,98th Cong., 2d Sess. 174 (1984). That report also states that the “purpose of the threat provision is to prevent actual material injury from occurring.” S.Rep. No. 249,96th Cong., 1st Sess. 88 (1979). Cf. H.R. Rep. No. 317, 96th Cong., 1st Sess. 47 (1979) (\"in considering threat, high present capacity utilization of the domestic industry and the absence of other indicia of present injury should not be considered as conclusive as to the absence of threat of injury”). Gifford-Hill Cement Co. v. United States, 9 CIT 357, 372, 615 F. Supp. 577, 588 (1985)." }, { "docid": "15451487", "title": "", "text": "United States, 372 F.3d 1284, 1289 & n. 2 (Fed. Cir.2004); Tx. Crushed Stone Co. v. United States, 35 F.3d 1535, 1540 (Fed.Cir.1994); Suramerica de Aleaciones Lamina-das v. United States, 966 F.2d 660, 665 & n. 5 (Fed.Cir.1992). We agree with the trial court that it was reasonable for the Commission to interpret the statutory language to permit it to accord different weight to imports during different portions of the period of investigation depending on the facts of each case. In particular, the Commission acted reasonably in construing the statutory language to permit it to focus on the most recent imports and pricing data. That construction is reasonable for several reasons. First, the purpose of antidump-ing and countervailing duty laws is remedial, not punitive or retaliatory, see Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103-04 (Fed.Cir.1990), and current data typically is the most pertinent in determining whether remedial measures are necessary, see Chr. Bjelland Seafoods A/S v. United States, 19 Ct. Int’l Trade 35, 44 n. 22 (1995). Second, section 1677(7)(B)(i) provides that, in making the material injury determination required by sections 1671d(b)(1) and 1673d(b)(1), the Commis sion shall consider, inter alia, the effects of the subject imports on domestic producers. Section 1677(7)(C)(iii) in turn requires the Commission, in determining the impact of the subject imports on domestic producers, to “evaluate all relevant economic factors which have a bearing on the state of the industry in the United States.” As the trial court explained, in most cases the most recent imports will have the greatest relevance to the current state of the domestic industry. Third, the Commission has broad discretion with respect to the period of investigation that it selects for purposes of making a material injury determination. As the Court of International Trade has explained, because the statute “does not expressly command the Commission to examine a particular period of time ... the Commission has discretion to examine a period that most reasonably allows it to determine whether a domestic industry is injured by [less than fair value] imports.” Kenda Rubber Indus. Co. v. United States, 630" } ]

[ { "docid": "1434480", "title": "", "text": "faced. But, as a response to the problem in the instant case, defendants can invoke the protective device already discussed above, i. e., impleader under Rule 14(a), to remedy any prejudice threatened by the unavailability of Croxford’s testimony. Given defendants’ ability to make Croxford a party by impleader, any claim of prejudice based upon the assumed unavailability of his testimony must fall. As a final matter, we note that any judgment in Croxford’s absence will be adequate within the third factor of Rule 19(b). This factor concerns the public interest in the complete and efficient resolution of controversies by wholes. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S.Ct. 733, 738, 19 L.Ed.2d 936 (1968). If Pasco wins, it can be accorded complete monetary relief from the coffers of the present defendants. The existing defendants would also be bound if the district court finds it appropriate to enter an injunction. Any injunctive relief would bind Croxford only to the extent of his agency but such a limitation poses no problem under the allegations of the complaint. There remains, however, a possibility of subsequent litigation between Croxford and Stenograph over the ultimate liability for any money damages. The alternative availability of a single state court action against both Stenograph and Croxford points up a disadvantage of this federal diversity action. But the prospect of later litigation is not in itself sufficient to make Croxford an indispensable party. The class of parties with claims most likely to lead to this sort of relitigation — tort-fea- sors with claims for indemnity or contribution — are not even necessary parties under Rule 19(a) let alone indispensable parties under Rule 19(b). As noted by the Advisory Committee, Rule 19(b) is not at variance with the settled authorities holding that a tort-feasor with the usual “joint and several” liability is merely a permissive party to an action against another with like liability. See 3 Moore’s Federal Practice, § 2153 (2d ed. 1963). 39 F.R.D. 88, 91 (1966). Whether Croxford and Stenograph are “joint tort-feasors” or in a relationship supporting an indemnity" } ]

[ { "docid": "1555255", "title": "", "text": "of forum shopping, it is possible to view Co hen’s naming of Wilhelm in the state court action as a strategy solely designed to preclude PaineWebber from removing the action to federal court. Thus, Cohen’s forum-shopping accusation against Paine-Webber not only ignores what may have motivated his own actions, but also fails to recognize that the FAA allows Paine-Webber’s petition and that the federal courts have “a ‘virtually unflagging obligation ... to exercise the jurisdiction given them.’ ” Moses H. Cone Mem’l Hosp., 460 U.S. at 15, 103 S.Ct. 927 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). The application of Rule 19 to cases involving joint tortfeasors, moreover, presents a useful analogy involving principles that are relevant to the present case. Specifically, a person’s status as a joint tortfeasor does not make that person a necessary party, much less an indispensable party. Temple v. Synthes Corp., 498 U.S. 5, 7-8, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (noting that “it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit”); MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 946 (11th Cir.1999) (concluding that a state court complaint identifying the defendants as joint tortfeasors and cocon-spirators does not make the absent party indispensable). Although Cohen does not explicitly argue that the status of PaineWebber and Wilhelm as joint tortfeasors makes Wilhelm an indispensable party, the multiple proceedings and inconsistent results in state and federal court that he seeks to avoid can occur whenever joint tortfeasors are not parties to the same lawsuit. This form of prejudice, however, does not require a finding that joint tortfeasors are necessary or indispensable parties. Temple, 498 U.S. at 8, 111 S.Ct. 315 (holding that joint tortfeasors were simply permissive parties to an action against one of them); Fed.R.Civ.P. 19 advisory committee notes (clarifying that, under Rule 19(a), “a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability”). For the same reason, the potential" }, { "docid": "22120943", "title": "", "text": "Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose absence from a case will result in dismissal for non-joinder.”); see also Pasco Int’l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n. 10 (7th Cir.1980) (recognizing the “established principle” that coconspirators are not indispensable parties). Moreover, we note that (1) an arbitrator has already ruled in favor of Jim Burke on all of Franklin’s claims against it and (2) the state court has dismissed Franklin’s claims against Jim Burke with prejudice. A party is “indispensable” only if he meets either of the threshold tests of Rule 19(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 19(b). That provision requires joinder if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial" }, { "docid": "16833278", "title": "", "text": "the state forum does not counsel in favor of abstention; it is only the inadequacy of the state forum which may impress a court not to abstain. See id. at 200. Based on these factors, the Court finds that the matter presently before it does not involve circumstances exceptional enough to justify Colorado River abstention. 3. Fed.R.Civ.P. 19 Pursuant to Fed.R.Civ.P. 19(a), a court may join an absentee party as plaintiff or defendant to an action where such joinder is “needed for just adjudication” of the action. 4 Moore’s Federal Practice § 19.02[2][e] (3d ed.1998). Joinder is necessary where the failure to join creates any of three potential risks: (1) risk that the court will be unable to accord complete relief among the parties; (2) risk of harm to the absentee’s ability to protect its interest; and (3) risk of harm to the defendant by subjecting it to multiple liability or inconsistent obligations. See id. It is never necessary, however, to join a joint tort-feasor as a defendant in an action against other tortfeasors. See Fed.R.Civ.P. 19, Advisory Committee Notes, 1966 Amendment (“It should be noted particularly, however, that the description is not at variance with the settled authorities holding that a tortfeasor with the usual ‘joint- and-several’ liability is merely a permissive party to an action against another with like liability.”); Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 316, 112 L.Ed.2d 263, reh’g denied, 498 U.S. 1042, 111 S.Ct. 715, 112 L.Ed.2d 704 (1991) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.”). The reason for this is as follows: Inherent in the concept of joint and several liability is the right of a plaintiff to satisfy its whole judgment by execution against any one of the multiple defendants who are liable to him, thereby forcing the [tortfeasor] who has paid the whole [judgment] to protect itself by an action for contribution against the other joint [tortfeasors]. Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 412" }, { "docid": "16833279", "title": "", "text": "Fed.R.Civ.P. 19, Advisory Committee Notes, 1966 Amendment (“It should be noted particularly, however, that the description is not at variance with the settled authorities holding that a tortfeasor with the usual ‘joint- and-several’ liability is merely a permissive party to an action against another with like liability.”); Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 316, 112 L.Ed.2d 263, reh’g denied, 498 U.S. 1042, 111 S.Ct. 715, 112 L.Ed.2d 704 (1991) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.”). The reason for this is as follows: Inherent in the concept of joint and several liability is the right of a plaintiff to satisfy its whole judgment by execution against any one of the multiple defendants who are liable to him, thereby forcing the [tortfeasor] who has paid the whole [judgment] to protect itself by an action for contribution against the other joint [tortfeasors]. Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 412 (3d Cir. 1993). Under Fed.R.Civ.P. 14(a), a defendant may bring a third-party complaint against any person “not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him.” A tortfeasor defendant may im-plead joint tortfeasors in this manner or await resolution of the action against him and then sue for contribution or indemnification. See id. Joint tortfeasors are “[t]hose who act together in committing wrong, or whose acts if independent of each other, unite in causing a single injury.” Black’s Deluxe Law Dictionary 839 (6th ed.1990). By claiming that Reid and Ullman are liable to them for contribution, Cushman & Wakefield allege that Reid and Ullman are joint tortfeasors who contributed to or caused the injury for which N.V. has sued Cushman & Wakefield. Cushman & Wakefield cannot simultaneously allege that Reid and Ullman are joint tortfeasors and seek their joinder as necessary parties. As a matter of law, joint tortfeasors are not necessary parties. The Court will therefore dismiss Count Four of" }, { "docid": "3797300", "title": "", "text": "to the action pursuant to Fed.R.Civ.P. 19. According to Plaintiffs Complaint, these entities are controlled by Movants and allegedly received Debtor’s assets and transferred the assets to Movants or entities in which Movants had a beneficial interest. Plaintiff disputes Movants assertion that these parties are necessary to this action. “Rule 19 creates a two-step inquiry: first, whether a party is necessary to a proceeding because of its relationship to the matter under consideration; and second, if a necessary party is unavailable, whether the proceeding can continue in that party’s absence. ” See Teamsters Local Union No. 171 v. Real Driveaway Co., 173 F.3d 915, 917-918 (4th Cir.1999). If the party is indispensable and cannot be joined then the action should be dismissed. See id. at 918. Dismissal is a drastic remedy and though Fed.R.Civ.P. 19 is framed as a multi-part test, the Court should proceed pragmatically based upon the facts of the case. See id. “The federal rules, however, do not authorize a defendant to compel an unwilling plaintiff to assert a claim against a second defen dant.... The most that the defendant can do is argue that complete relief cannot be afforded without joinder of the second defendant.” See Stanley v. Darlington County School District, 84 F.3d 707, 714 (4th Cir.1996). In this case, Movants generally assert that Bancroft and Diversified Design Associates are indispensable. However, it does not appear that proceeding with this litigation would subject these parties or the Movants to competing liabilities or that the interest of the non-joined entities would be impaired. At most, these entities appear from the Complaint to be joint-tortfeasors. There is no indication that Plaintiff cannot receive complete relief without these parties and therefore the Motions are denied to the extent they are based upon Fed. R.Civ.P. 12(b)(7). See State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945) (finding a co-conspirator is not an indispensable party); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (finding joint “tortfeasors or co-conspirators are not persons whose absence from case will result in dismissal for nonjoinder”)." }, { "docid": "1555256", "title": "", "text": "is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit”); MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 946 (11th Cir.1999) (concluding that a state court complaint identifying the defendants as joint tortfeasors and cocon-spirators does not make the absent party indispensable). Although Cohen does not explicitly argue that the status of PaineWebber and Wilhelm as joint tortfeasors makes Wilhelm an indispensable party, the multiple proceedings and inconsistent results in state and federal court that he seeks to avoid can occur whenever joint tortfeasors are not parties to the same lawsuit. This form of prejudice, however, does not require a finding that joint tortfeasors are necessary or indispensable parties. Temple, 498 U.S. at 8, 111 S.Ct. 315 (holding that joint tortfeasors were simply permissive parties to an action against one of them); Fed.R.Civ.P. 19 advisory committee notes (clarifying that, under Rule 19(a), “a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability”). For the same reason, the potential prejudice that Cohen fears does not provide a basis for concluding that Wilhelm is an indispensable party. Furthermore, Cohen’s reliance on Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4th Cir.1999), to support his position that Wilhelm is an indispensable party, is misplaced. Unlike the present case, where one of two state court defendants has filed a petition to compel arbitration in federal court against the only state court plaintiff, the plaintiff in Owens-Illinois filed a petition to compel arbitration in federal court against a select group of the state court plaintiffs who had brought lawsuits to recover for their asbestos-related injuries. Id. at 438-39. The petition to compel arbitration did not name as defendants the state court plaintiffs who would destroy complete diversity. Id. at 439. Applying Rule 19(b), the court held that the absent, non-diverse parties were necessary and indispensable because a significant risk of inconsistent judgments existed, because the district court was unable to craft a remedy to reduce or avoid the potential for prejudice, and because an alternative forum was available in" }, { "docid": "1289655", "title": "", "text": "before it, or should be dismissed, the absent person thus regarded as indispensable.” Fed.R.Civ.P. 19(b). See also Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1079 (11th Cir.1983) (applying Rule 19(a) & (b)). 1. Necessary Party A party is considered “necessary” to the action if the court determines either that complete relief cannot be granted with the present parties or the absent party has an interest in the disposition of the current proceedings. Id. Laker argues that ACL need not be joined in the suit because (1) it seeks now only monetary damages, which BA can provide without ACL and (2) even if Laker were still pursuing slots, BA could transfer a slot to Laker without the involvement of ACL. Laker is correct in arguing that courts have held that joint tortfeasors need not all be joined in one lawsuit. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 316, 112 L.Ed.2d 263 (1990) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit_ The Advisory Committee Notes to Rule 19(a) explicitly state that a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability.”) (citations and quotations omitted). The interests of ACL under the circumstances presented here, however, are more significant than those of a routine joint tortfeasor. Although the relief Laker presently seeks may not directly implicate ACL because there would be no order directed at ACL, Laker’s antitrust claims necessarily require that a court evaluate ACL’s conduct in relation to Laker, thereby substantially implicating ACL’s interests. See Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F.Supp. 92, 105-06 (C.D.Cal.1971) (while under Rule 19 there are some cases which state that antitrust co-conspirators need not be joined, here, joint tortfeasor still had interests covered by Rule 19(a) and therefore had to be joined), aff'd, 461 F.2d 1261 (9th Cir.1972). In order to prove its antitrust claims, Laker would be required to show that ACL acted in other “than an" }, { "docid": "3454415", "title": "", "text": "the court’s subject-matter jurisdiction. Id. Finally, if joinder will destroy subject-matter jurisdiction — such as through joinder of a non-diverse party — the court must examine “whether in equity and good conscience the action should proceed” without the nonjoined party. Id. This analysis is governed by Rule 19(b), which provides four factors for the court to consider when determining whether a necessary party is indispensable. If the non-joined party is found to be indispensable under Rule 19(b), the Court must dismiss the action. 1. Schneider Is a Necessary Party Under Rule 19(a), a party is necessary if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. In mixing the necessary and indispensable analyses, Stacy claims that Schneider is necessary because she (1) is a joint tortfea-sor and (2) is bound by the arbitration agreement which might be subject to inconsistent interpretations in state and federal court. The first argument is without merit: the fact that Schneider is an alleged joint tortfeasor and Stacy therefore will have unresolved claims without Schneider’s presence at arbitration does not make her a necessary party. Temple v. Synthes Corp., Ltd., 498 U.S. 5, 8, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (“As potential joint tortfeasors ... [they] were merely permissive parties.”). The second argument carries more weight. As another district court in this circuit has noted, “if this Court and the state court were to reach different conclusions regarding whether the arbitration agreement is enforceable, [Schneider] would face inconsistent procedural remedies.” GGNSC Louisville Hillcreek, LLC v. Warner, 2013 WL 6796421, at *3 (W.D.Ky. Dec. 19, 2013). This is enough to find Schneider a necessary party. 2. Schneider Is Not an Indispensable Party There is" }, { "docid": "1436592", "title": "", "text": "that the governments are, in the context of this case, joint tortfeasors at most. First, it is well established federal law that neither joint tortfeasors nor co-conspirators are indispensable parties. See Continental Kraft Corp. v. Euro-Asia Devel. Group, Inc., 1997 WL 642350 (E.D.N.Y. Sept. 8, 1997); Frink America, Inc. v. Champion Road Machinery Limited, 961 F.Supp. 398, 405 (N.D.N.Y.1997) (citing Georgia v. Pennsylvania R. Co., 324 U.S. 439, 463, 65 S.Ct. 716, 89 L.Ed. 1051 (1945)). The Rulemakers did not intend to make a necessary party of an ordinary tortfeasor who is potentially liable under the doctrine of joint and several liability. The Advisory Committee refers to “settled authorities holding that a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability.” Fed.R.Civ.P. 19 advisory committee’s note. The Supreme Court has validated this in Temple v. Synthes. Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990), reversing the Court of Appeals for the Fifth Circuit for declining to recognize that the district court had abused its discretion in mandating joinder of potential joint tortfeasor defendants. Temple, 498 U.S. at 7, 111 S.Ct. 315. It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. Id. The facts before this Court, as presented in the complaint, allege injuries derived from acts specifically attributable to the named defendants: Some of the acts for which plaintiffs seek redress occurred in advance of any governmental compulsion. The complicity of the French and German governments in effecting and perpetuation the spoliation of Jewish assets does not mandate their joinder, it merely codifies their status as joint tortfeasors. This Court finds that there can be a fair and just adjudication without the governments as parties — they are, at most, permissive parties and Rule 19 does not compel their joinder to this action. B. Rule 19 — Necessary Parties The Court would add that even if Rule 19 analysis were appropriate here, defendants’ motion still fails since the French" }, { "docid": "22207516", "title": "", "text": "might be that the plate was not defective but that the doctor and the hospital were negligent, while the doctor and the hospital, on the other hand, might claim that they were not negligent but that the plate was de fective. App. to Pet. for Cert. A-3. The Court of Appeals found that the claims overlapped and that the District Court therefore had not abused its discretion in ordering joinder under Rule 19. A petition for rehearing was denied. In his petition for certiorari to this Court, Temple contends that it was error to label joint tortfeasors as indispensable parties under Rule 19(b) and to dismiss the lawsuit with prejudice for failure to join those parties. We agree. Synthes does not deny that it, the doctor, and the hospital are potential joint tortfeasors. It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. See Lawlor v. National Screen Service Corp., 349 U. S. 322, 329-330 (1955); Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111, 132 (1912). See also Nottingham v. General American Communications Corp., 811 F. 2d 873, 880 (CA5) (per curiam), cert. denied, 484 U. S. 854 (1987). Nothing in the 1966 revision of Rule 19 changed that principle. See Provident Bank, supra, at 116-117, n. 12. The Advisory Committee Notes to Rule 19(a) explicitly state that “a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability.” 28 U. S. C. App., p. 595. There is nothing in Louisiana tort law to the contrary. See Mullin v. Skains, 252 La. 1009, 1014, 215 So. 2d 643, 645 (1968); La. Civ. Code Ann., Arts. 1794, 1795 (West 1987). The opinion in Provident Bank, supra, does speak of the public interest in limiting multiple litigation, but that case is not controlling here. There, the estate of a tort victim brought a declaratory judgment action against an insurance company. We assumed that the policyholder was a person “who, under § (a), should be" }, { "docid": "11816124", "title": "", "text": "Rule 19(a)(2) issue in their briefs on appeal, and we can decide the issue as a matter of law. As an initial matter, Rule 19(a)(2)® requires that the absent parties have “an interest relating to the subject of the action.” Here, in finding that Local Counsel were necessary parties under subsection 19(a)(2)®, the District Court wrote: There is no doubt that Local Counsel are necessary parties under subsection (a)(2)®. Local Counsel have concrete, tangible interests, and intangible but profoundly significant professional interests, relating to the subject matter of the pending action, and trial in their absence would, as a practical matter, impair and impede their ability to protect their financial and professional interests. This is because they are in privity with Lead Counsel in the performance of their jointly owed fiduciary duties to their mutual clients, so that judgment entered against Lead Counsel could preclude Local Counsel from defending against any future claims for liability for breach of fiduciary duty, and from disputing any determination regarding their joint failure to disclose critical information to their clients in any disciplinary proceedings plaintiffs might initiate with the Disciplinary Boards of Pennsylvania, Indiana or Ohio. We are not persuaded by the District Court’s analysis. That Defendants and Local Counsel may have “jointly owed fiduciary duties to their mutual clients” does not mean that they shared an “interest relating to the subject of the action” for purposes of Rule 19(a) analysis. Indeed, an Advisory Committee Note to Rule 19(a) explicitly states that subdivision (a) of the rule “is not at variance with the settled authorities holding that a tortfeasor with the usual ‘joint- and-several’ liability is merely a permissive party to an action against another with like liability.” Courts, moreover, have long recognized that “it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam); see also PaineWebber, Inc. v. Cohen, 276 F.3d 197, 204 (6th Cir.2001) (noting that “a person’s status as a joint tortfeasor does not make that" }, { "docid": "22151202", "title": "", "text": "the Court of Appeals for the Fifth Circuit recently held, “Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tort-feasors or coconspirators are not persons whose absence from a case will result in dismissal for nonjoinder.” Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970). . We, of course, make no determination whether VWAG may in fact have such a right against Ivana Field under the governing law, but note only that impleader may be available when there is a question of fact as to whether the parties are joint tort-feasors or whether the liability is primary or secondary, so that the defendant may be entitled to indemnity from the third party. 3 Moore’s ¶ 14.11 at 14-320. . VWAG asserts that impleader is not available here because Ivana is a party and Federal Rules of Civil Procedure 14(a) explicitly refers to “a person not a party to the action” in describing those who may be brought in. In view of our determination that Ivana’s claim in her individual capacity is not indispensable to the suit and should therefore be dismissed, however, the language of Rule 14(a) would not appear to pose a problem. In any event, most courts that have considered the problem have resolved it by using 14(a) in conjunction with their broad severance power under Civil Rule 21. See 3 Moore’s ¶ 14.14, at 14-336 to 14-338 (citing cases); 6 Wright & Miller, ¶ 1446, at 255-56 (same). Alternatively, it is possible to construe the provision “a person not a party to the action” to mean a person not a party to the separate action for which impleader is sought. By this means, impleader has simply been allowed as an initial matter under the authority of Rule 14(a) without going through the proposed ritual of severance, impleader, and consolidation. United States for the use of Westinghouse Supply Co. v. Nicholas, 28 F.R.D. 8 (D.C.Minn.1961). . 6 Wright & Miller, § 1444, at 223 (citing cases). . 7 Wright & Miller, § 1656, at 281 (citing cases)." }, { "docid": "22120944", "title": "", "text": "absence from a case will result in dismissal for non-joinder.”); see also Pasco Int’l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n. 10 (7th Cir.1980) (recognizing the “established principle” that coconspirators are not indispensable parties). Moreover, we note that (1) an arbitrator has already ruled in favor of Jim Burke on all of Franklin’s claims against it and (2) the state court has dismissed Franklin’s claims against Jim Burke with prejudice. A party is “indispensable” only if he meets either of the threshold tests of Rule 19(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 19(b). That provision requires joinder if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). In light of the binding ruling in favor of Jim Burke and its dismissal from the state court action with prejudice, Jim Burke is not an indispensable party with respect to Franklin’s claims against MS Dealer. Because complete diversity exists between MS Dealer and Franklin and because Jim Burke is not an indispensable party, we find that the district court properly exercised subject matter jurisdiction over MS Dealer’s petition. We thus proceed to address the merits of the district court’s decision denying the petition. III. The district court denied MS Dealer’s petition to compel arbitration on the ground that MS Dealer was not a signatory to the Buyers Order. We review this decision de novo. See Kidd v. Equitable Life Assurance Soc’y of the United States, 32 F.3d 516, 518 (11th Cir.1994). In enacting the FAA, Congress demonstrated a “liberal federal policy favoring arbitration agreements.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114" }, { "docid": "16789946", "title": "", "text": "consideration affirmative defense. While the DTPA claim was added just before trial, the attorneys’ efforts already expended on the case were necessary to successfully prosecute the DTPA claim and therefore should not be segregated. The district court properly considered all relevant factors and properly awarded attorneys’ fees. VII Finally, GAC argues that the case should be dismissed for failure to join an indispensable party, James Rumpf. Fed.R.Civ.P. 19(a) requires joinder of a person if: (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. GAC has not established that it may be subject to multiple or inconsistent obligations if Rumpf is not joined, nor has it established that the disposition of this case will impair or impede any interest Rumpf may have. Moreover, it is well-established that Rule 19 does not require the joinder of joint tortfeasors. See Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1980). Nor does it require joinder of principal and agent. See Milligan v. Anderson, 522 F.2d 1202, 1204-05 (10th Cir.1975); 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1623 (1986). Finally, Rule 19 does not require joinder of persons against whom Ross and GAC have a claim for contribution. See Dunlop v. Beloit College, 411 F.Supp. 398, 403 (W.D.Wis.1976); Wright, Miller & Kane, supra at § 1623. Thus, whether Rumpf be a joint tortfeasor, agent, or contributor to the award, Rumpf was not an indispensible party to this case. VIII The decision of the district court is AFFIRMED. . After this suit commenced the investors each received a check for $51.42. Hohn tried to cash the check, but it was returned for lack of sufficient funds. ." }, { "docid": "22120942", "title": "", "text": "does not affect jurisdiction in this, an independent action” to compel arbitration. Id. While acknowledging that the McCollum court has already specifically considered and rejected the argument Franklin raises here, she asks us to modify or reverse that case. We decline that request. See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.1998) (‘We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision.”). Alternatively, Franklin contends that diversity jurisdiction is lacking because Jim Burke is an “indispensable party,” as that term is defined in Rule 19 of the Federal Rules of Civil Procedure, to the petition to compel arbitration. See Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 445 (2d Cir.1995) (“As with any federal action, diversity of citizenship is determined by reference to the parties named in the proceeding before the district court, as well as any indispensable parties who must be joined pursuant to Rule 19 of the Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose" }, { "docid": "1436591", "title": "", "text": "the Federal Rules of Civil Procedure. Defendants claim that the French and German governments are indispensable parties to these claims. Plaintiffs object to this, claiming, among other things, the French and German governments are not necessary parties as defined by Rule 19(a) in that they are, at most, joint tortfeasors and merely permissive parties under Rule 19; that the nature of French and German governmental obligations, possessions and liability are distinct from the wrongful conduct and misappropriated profit allegedly attributable to the named defendants. Further: more, plaintiffs maintain that complete relief may be provided to the plaintiffs by defendant banks. Thus, plaintiffs claim that joinder of the French and German governments is not essential to effecting the relief requested. A Mandatory v. Permissive Parties The Court finds that the facts in this case do not merit mandatory joinder. Although defendants claim that the French and German governments must be joined to his action “because they mandated and perpetrated the improper acts listed in the Second Amended Complaint,” Def.Mem. at 10, it appears to this Court that the governments are, in the context of this case, joint tortfeasors at most. First, it is well established federal law that neither joint tortfeasors nor co-conspirators are indispensable parties. See Continental Kraft Corp. v. Euro-Asia Devel. Group, Inc., 1997 WL 642350 (E.D.N.Y. Sept. 8, 1997); Frink America, Inc. v. Champion Road Machinery Limited, 961 F.Supp. 398, 405 (N.D.N.Y.1997) (citing Georgia v. Pennsylvania R. Co., 324 U.S. 439, 463, 65 S.Ct. 716, 89 L.Ed. 1051 (1945)). The Rulemakers did not intend to make a necessary party of an ordinary tortfeasor who is potentially liable under the doctrine of joint and several liability. The Advisory Committee refers to “settled authorities holding that a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability.” Fed.R.Civ.P. 19 advisory committee’s note. The Supreme Court has validated this in Temple v. Synthes. Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990), reversing the Court of Appeals for the Fifth Circuit for declining to recognize that the" }, { "docid": "11816125", "title": "", "text": "clients in any disciplinary proceedings plaintiffs might initiate with the Disciplinary Boards of Pennsylvania, Indiana or Ohio. We are not persuaded by the District Court’s analysis. That Defendants and Local Counsel may have “jointly owed fiduciary duties to their mutual clients” does not mean that they shared an “interest relating to the subject of the action” for purposes of Rule 19(a) analysis. Indeed, an Advisory Committee Note to Rule 19(a) explicitly states that subdivision (a) of the rule “is not at variance with the settled authorities holding that a tortfeasor with the usual ‘joint- and-several’ liability is merely a permissive party to an action against another with like liability.” Courts, moreover, have long recognized that “it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam); see also PaineWebber, Inc. v. Cohen, 276 F.3d 197, 204 (6th Cir.2001) (noting that “a person’s status as a joint tortfeasor does not make that person a necessary party, much less an indispensable party”). Furthermore, the requirements of Rule 19(a) are not satisfied simply because a judgment against Defendants in this action might set a persuasive precedent in any potential future action against Local Counsel. See Janney Montgomery Scott, Inc., 11 F.3d at 411 (rejecting the district court’s conclusion that the possibility of a “persuasive precedent” required joinder under Rule 19(a)(2)®). In Janney, the defendant and its parent corporation were co-obligors on a contract with the plaintiff. Alleging a breach of contract, the plaintiff filed suit in federal court against the defendant. The plaintiff also filed suit in state court against both the defendant and its parent corporation. The federal district court granted the defendant’s motion for judgment on the pleadings, in part based on its conclusion that the defendant’s parent corporation was a “necessary” party to the suit under Rule 19(a)(2)® because “it was likely that any decision reached in the federal action would affect the pending state court action ... as persuasive precedent against [the absent parent corporation].”" }, { "docid": "22151201", "title": "", "text": "Procedure § 3604, at 607-08 (1975) (citing cases) [hereinafter cited as Wright, Miller & Cooper]. . Act of March 3, 1875, § 1, 18 Stat. 470. . 28 U.S.C. § 1332(a)(2) (1976), as amended by Foreign Sovereign Immunities Act of 1976, Pub.L. No. 94-583, § 3, 90 Stat. 2891. . The district court’s authority to dismiss non-diverse parties derives from F.R.C.P. 21 (Misjoinder and Non-joinder of Parties) which provides: Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any state of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. . 3A Moore’s Federal Practice ¶ 21.03[2], at 21-14 (2d ed. 1979) [hereinafter cited as Moore’s]. . VWAG asserts that the possibility that Ivana is a joint tort-feasor is sufficient to establish her indispensability. But joint tort-feasors are merely permissive parties to an action, they are not indispensable. As the Court of Appeals for the Fifth Circuit recently held, “Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tort-feasors or coconspirators are not persons whose absence from a case will result in dismissal for nonjoinder.” Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970). . We, of course, make no determination whether VWAG may in fact have such a right against Ivana Field under the governing law, but note only that impleader may be available when there is a question of fact as to whether the parties are joint tort-feasors or whether the liability is primary or secondary, so that the defendant may be entitled to indemnity from the third party. 3 Moore’s ¶ 14.11 at 14-320. . VWAG asserts that impleader is not available here because Ivana is a party and Federal Rules of Civil Procedure 14(a) explicitly refers to “a person not a party to the action” in describing those who may be brought in. In view of our determination that" }, { "docid": "13167851", "title": "", "text": "U.S. 102, 125, note 22, 88 S.Ct. 733, 746, note 22, 19 L.Ed.2d 936 (1968). It is beyond peradventure that joint tortfeasors are not indispensable parties in the federal forum. See: Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure, § 1623 at 241-42 (1973 & Supp. 1981); Royal Truck and Trailer v. Armadora Maritime Salvadorena, 10 B.R. 488 (N.D. 111.1981); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir.1970); 3A Moore, Federal Practice ¶ 19.07(1) (2d ed. 1967). Indeed, the Advisory Committee Notes accompanying Rule 19 provide that “a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability” and “Joinder of these tortfeasors continues to be regulated by Rule 20”. Since the complaints at bar allege conditions of asbestosis resulting from exposure to products of both the solvent co-defendants and Unarco and/or J-M, the Chapter 11 debtors are joint tortfeasors and accordingly not indispensable. See also: In re Related Asbestos Cases, 23 B.R. 523 (N.D.Cal.1982); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983); Ashworth v. Johns-Manville Sales Corp., Case Nos. C78-470, C81-1545, C77-1088, C79-167 (N.D.Ohio Mar. 21, 1983); In re Stay of Proceedings Against Defendants Johns-Manville Corp. v. Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc). Last, the solvent co-defendants of Unarco and J-M implore this Court to invoke its inherent power to stay proceedings. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936). It is submitted that the factors incorporated in Rule 19(b), Fed.R.Civ.P., as interpreted in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), should be employed, by analogy, to determine of such inherent power should be exercised. Particularly, the solvent co-defendants conjecture that a continuation of proceedings in the" }, { "docid": "13134884", "title": "", "text": "im-plead Waterfront, AMW and Susan Kinter Bowen, as third-party defendants should the dismissal motions be denied. -Each of the City’s motions will be addressed separately. (1) Motion To Dismiss For Failure To Join Indispensable Parties The City has moved to dismiss the second, fourth, and sixth causes of action alleging that Waterfront and AMW are indispensable parties who have not been joined. Rule 19(a) of the Fed.R.Civ.P. requires: A person ... whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. The City has failed to show how the specific conditions of Rule 19(a) are met. Indeed, it appears that the Gity, Waterfront, and AMW are, at best, joint tortfeasors, jointly and severally liable for plaintiffs injuries. Joint tortfeasors, however, are not indispensable parties, but merely permissive parties. Fed.R.Civ.P. 19 advisory committee note; Picard v. Wall Street Discount Corp., 526 F.Supp. 1248, 1252 (S.D.N.Y.1981); Kerr v. Compagnie De Ultramar, 250 F.2d 860, 863 (2d Cir.1953). The reasons for this general rule are that joint and several liability permits the plaintiff to recover full relief from any one of the responsible parties, which party then has the option of suing for contribution or indemnity. Thus, there is no legitimate fear of multiple obligations. 3A Moore’s Federal Practice ¶ 19.07 — 1[2.—2] (2d ed. 1985). Complete relief can be accorded among those already parties and the City may perhaps be entitled to recover in a later action any contribution or indemnity due it from Waterfront and/or AMW. Thus, the City’s motion to dismiss for" } ]

[ { "docid": "15662110", "title": "", "text": "Taking such view of the complaint, the essential question is, Does the complaint allege a joint liability on the part of both defendants and not a separate one as to each defendant? The question is not answered by saying that the plaintiff could have brought his cause of action against either defendant separately. Powers v. Chesapeake & Ohio Railway Co., 169 U. S. 92, 18 S. Ct. 264, 42 L. Ed. 673, supra; Lynes v. Standard Oil Company (D. C.) 300 F. 812, supra. The question must be answered by determining whether or not the complaint on its face, and however imperfectly, alleges a joint liability. If the allegation of facts taken at their face and with every reasonable intendment which may be taken therefrom, states a joint liability, the decision must be for the plaintiff, whatever the nature of the cause or of action. Chesapeake & Ohio R. Co. v. Dixon, 179 U. S. 131, 139, 21 S. Ct. 67, 45 L. Ed. 121, supra; Slate v. Hutcherson, 15 F.(2d) 551 (C. C. A. 4). Allegations which are purely conclusions of law are not sufficient. But the complaint is not required to and should not state numerous evidentiary facts. It is sufficient for the complaint to allege that the work of raising, towing, etc., of the sunken boat was performed in an unskillful and unworkmanlike manner, leaving to a bill of particulars the specifications of the things done or omitted which constituted negligence. It is doubtless sufficient also, to allege that the defendant insurance company was a participant in the total negligence by not properly instructing the third party whom it engaged or not requiring such third party to perform the work in the usual or ordinary manner in which such work is done. If more specification is required, that might also be obtained by a bill of particulars. There can be little doubt that the pleader intended to allege a joint liability for negligence in the salvage operations. The policy provision stated that the insured should be liable for negligence in salvage operations “done by these insurers and/or" } ]

[ { "docid": "23356651", "title": "", "text": "removal. After the record had .been filed in the District Court the plaintiff filed a motion to remand the cause to the Circuit Court, on the ground that it appeared upon the face of the record that the petition for removal was insufficient and the District Court ha‘d not acquired jurisdiction of the cause. This motion was overruled; to which the plaintiff excepted. Thereafter, on motion of the Stores Company, the court' ordered the plaintiff to furnish security for costs within a specified time; and upon his failure to comply with this rule, the suit was dismissed, at his costs. To obtain a review of the ruling on the jurisdictional question presented by the motion to remand, the plaintiff applied for a direct writ of error from this court. This was allowed by the District Judge in February,- .1925, under § 238 of the Judicial Code; and in that connection he duly certified for decision the single question whether, upon the record, the District Court acquired jurisdiction of the cause by the removal based upon a separable controversy. This question is now properly before us for review. Wilson v. Republic Iron Co., 257 U. S. 92, 96. It is well settled by the decisions of this court, that an action brought in a state court against two defendants jointly, in which the plaintiff states a case of joint liability arising out of the concurrent negligence of the defendants, does not present a separable controversy authorizing the removal of the cause to a federal court, even though the plaintiff might have sued the defendants separately; the allegations of the complaint being decisive as to the nature. of the controversy in the absence of a showing that one of the defendants was fraudulently joined for the purpose of preventing the removal. Louisville & Nashville Railroad v. Wangelin, 132 U. S. 599, 601; Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 97; Alabama Southern Railway v. Thompson, 200 U. S. 206, 214; Chicago, R. I. & Pac. Railway v. Dowell, 229 U. S. 102, 111; Mc-Allister v. Chesapeake & Ohio Railway," }, { "docid": "21816249", "title": "", "text": "318, 46 S. Ct. 498, 70 L. Ed. 965, states the rule as follows: “It is well settled by the decisions of this court that an action brought in a state court against two defendants jointly, in whieh the plaintiff states a case of joint liability arising out of the concurrent negligence of the defendants, does not present a separable controversy, authorizing the removal -of the cause to a federal court, even though the plaintiff might have sued the defendants separately; the allegations of the complaint being decisive as to the nature of the controversy, in the absence of a showing that one of the defendants was fraudulently joined for the purpose of preventing the removal.” Other authorities are Louisville & Nashville R. R. Co. v. Ide, 114 U. S. 52, 5 S. Ct. 735, 29 L. Ed. 63; John S. Pirie et al. v. Evan J. Tvedt et al., 115 U. S. 41, 5 S. Ct. 1034, 1161, 29 L. Ed. 331; Louisville & Nashville R. R. Co. v. Wangelin, 132 U. S. 599, 10 S. Ct. 203, 33 L. Ed. 474; Chesapeake & Ohio Ry. Co. v. Lucy Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121; Graves v. City & Suburban Tel. Ass’n et al. (C. C.) 132 F. 387. The court said in the ease of Chesapeake & Ohio Ry. Co. v. Dixon, supra: “It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and whieh is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the circuit court of the United States. * * * A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his" }, { "docid": "15662098", "title": "", "text": "169 U. S. 92, 18 S. Ct. 264, 42 L. Ed. 673; Chesapeake & Ohio R. Co. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121; Hay v. May Dept. Stores Co., 271 U. S. 318, 46 S. Ct. 498, 70 L. Ed. 965; Lynes v. Standard Oil Company (D. C.) 300 F. 812. Upon a motion in the federal court to remand, the burden is on the removing defendant to show that the case is removable. Carson v. Dunham, 121 U. S. 421, 425, 7 S. Ct. 1030, 30 L. Ed. 992; Wilson v. Republic Iron & Steel Company, 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144. The removal in this case was obtained upon a petition or affidavit which did not state that the liability was severable but defendant insurance company now contends that it is severable. The burden is on the defendant of showing that the cause of action is severable and the case removable. By the terms of the policy, the insurance company is exempt from liability under certain conditions. The insurer is also called upon to do various things as a condition of the insurer’s liability. The assured may do various acts by way of salvaging the boat or reducing the loss, which are expressly declared not to be admissions of liability. After detailed provisions, partly under the United States Arbitration Act for fixing the amount of the loss, the policy reads: “It is expressly understood and agreed that nothing done pursuant to the provisions aforesaid shall constitute an admission of liability by these insurers. * * * ” The later permissive provision here involved contains the same safeguard against the acts therein specified being construed as an admission of liability. The provision is as follows: “The insurers are hereby authorized as agent for the assured, to take such means as they may think fit toward recovering, saving and/or preserving the property insured, without affirming or denying any liability under this policy, and any such acts so done by these Insurers shall be considered as done" }, { "docid": "5756545", "title": "", "text": "forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises. It is not enough to allege in terms that the case is removable or belongs to one of the enumerated classes, or otherwise to rest the right upon mere legal conclusions. As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 202 [24 L.Ed. 656]; Carson v. Dunham, 121 U.S. 421, 426 [7 S.Ct. 1030, 30 L.Ed. 992]; Crehore v. Ohio & Mississippi Railroad Co., 131 U.S. 240, 244 [9 S.Ct. 692, 33 L.Ed. 144]; Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 101 [18 S.Ct. 264, 42 L.Ed. 673].” An absence of an allegation cannot be regarded as an allegation defective-in form. Here the defendant does not seek to amend an allegation; it seeks to introduce one not heretofore made. “It is well settled that, if, upon the face of the record, including the petition for removal, a suit does not appear to be a removable one, then the state court is not bound to surrender its jurisdiction. Stone v. [State of] South Carolina, 117 U.S. 430, 432, 6 S.Ct. 799, 29 L. Ed. 962, 963, (1886); Carson v. Hyatt, 118 U.S. 279, 281, 6 S.Ct. 1050, 30 L.Ed. 167, 168, (1886); Marshall v. Holmes, 141 U.S. 589, 595, 12 S.Ct. 62, [35 L.Ed. 870] (1891); Burlington C. R. & N. Ry. Co. v. Dunn, 122 U.S. 513, 515, 7 S.Ct. 1262, 30 L.Ed. 1159 (1887).” Victory Cabinet Co. v. Insurance Co. of North America (7 Cir., 1950), 183 F.2d 360, 361. If the facts are not sufficient in the first instance to divest the state court of jurisdiction the case cannot be treated as one which is within the" }, { "docid": "23356652", "title": "", "text": "a separable controversy. This question is now properly before us for review. Wilson v. Republic Iron Co., 257 U. S. 92, 96. It is well settled by the decisions of this court, that an action brought in a state court against two defendants jointly, in which the plaintiff states a case of joint liability arising out of the concurrent negligence of the defendants, does not present a separable controversy authorizing the removal of the cause to a federal court, even though the plaintiff might have sued the defendants separately; the allegations of the complaint being decisive as to the nature. of the controversy in the absence of a showing that one of the defendants was fraudulently joined for the purpose of preventing the removal. Louisville & Nashville Railroad v. Wangelin, 132 U. S. 599, 601; Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 97; Alabama Southern Railway v. Thompson, 200 U. S. 206, 214; Chicago, R. I. & Pac. Railway v. Dowell, 229 U. S. 102, 111; Mc-Allister v. Chesapeake & Ohio Railway, 243 U. S. 302, 310; Chicago & Alton Railroad v. McWhirt, 243 U. S. 422, 425. ■This rule was applied in the Dowell Case, supra, 112, where a railroad laborer, who had been run down by an engine, brought suit against the railroad company and the engineer jointly, alleging in his petition that the defective 'character of the engine, the unfitness and in competency of the engineer, and his negligence and carelessness in needlessly running the engine over the plaintiff, “ con- ' currently and jointly contributed ” to the injuries. So, in the present case, the plaintiffs’- petition alleged in substance that the negligence of the Stores Company in permitting the passageway to become obstructed, in requiring the employees to operate their trucks in an unsafe manner, and, specifically, in permitting McCormick, an unsafe co-employee, to handle his truck in a negligent and dangerous manner, directly concurred and jointly cooperated with McCormick’s negligence in causing the plaintiff’s injuries. It is clear that this petition stated on its face a case of joint liability arising" }, { "docid": "22933364", "title": "", "text": "the status of the parties who remain. * * * It is but a step further, and it seems a logical one, that if a plaintiff voluntarily abandons the joint character of his proceedings, and elects to pursue the only defendant who has been, drawn within the jurisdiction of the court upon a liability which is either joint or several, at his election, there arises at the moment of the election such a change in the structure of the controversy as confines the inquiry to the citizenship of the parties then before the court.” It is our opinion and we hold that the rule of the Berry case, supra, is sound, and that the plaintiff in the instant case having petitioned the court to set the case for trial and having announced that she was ready to proceed with the trial against the Southern Pacific Company, each at a time when only the latter defendant had been brought into court, had abandoned the joint character of her action, and rendered the cause immediately removable to the District Court. The question next arises as to whether or not the petition for removal was timely. Plaintiff argued in the District Court in seeking a remand, that the petition, if proper at all, should have been made prior to the defendant’s answer to the complaint, or at least immediately after service of the memorandum to set the case for-trial. The first argument of the plaintiff above was answered by the Supreme Court in Powers v. Chesapeake & Ohio R. Co., supra [169 U.S. 92, 18 S.Ct. 266, 42 L.Ed. 673], in the following words: “The question whether a defendant may file, in the state court in which the suit was commenced, a petition for removal, after the time mentioned in the act of congress has elapsed, in a case which was not removable when that time expired, is now directly presented for adjudication; and the answer to this question depends upon the terms and effect of the act in force when these proceedings took place. % * * “This provision clearly manifests the" }, { "docid": "21373085", "title": "", "text": "(C. C. A. 8) 68 F.(2d) 686, 688; Morris v. E. I. Du Pont De Nemours & Co. (C. C. A. 8) 68 F.(2d) 788. If a resident' defendant is joined, the joinder, although fair upon its face, may nevertheless be shown on petition for removal to be merely a sham or fraudulent device to prevent a removal, but the showing must consist of facts leading to that conclusion, rather than the pleader’s conclusions or deductions. Morris v. E. I. Du Pont De Nemours & Co., supra; Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144. The court need only consider whether there is a real intention on the part of the plaintiff to secure a joint judgment, or whether there is only a colorable ground for such claim shown by the record. The court on motion to remand will not examine plaintiff’s pleading closely enough to determine whether a flaw might be found in it on special demurrer, but even though plaintiff may have misconceived his cause of action and may have no right to maintain it against' the defendants jointly, yet that does not necessarily convert an alleged joint cause of action into a separable controversy for the purpose of removal. The joinder must have been in bad faith in order to warrant removal. Tlie joinder of a defendant is fraudulent if it is clear that under the law of the state in which the action is brought, the facts alleged by the plaintiff as the basis for the liability of the resident defendant could not create a joint liability against him and his codefendant, so that the assertion of a joint cause of action is, as a matter of local law, plainly sham and fraudulent. Such joinder is also fraudulent if the facts alleged in plaintiff’s pleading with reference to the resident defendant are shpwn to be so clearly false as to demonstrate that no factual basis exists" }, { "docid": "7584992", "title": "", "text": "York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 202 (24 L. Ed. 656); Carson v. Dunham, 121 U. S. 421, 426, 7 S. Ct. 1030 (30 L. Ed. 992); Crehore v. Ohio & Mississippi Ry. Co., 131 U. S. 240, 244, 9 S. Ct. 692 (33 L. Ed. 144); Powers v. Chesapeake & Ohio Railway Co., 169 U. S. 92, 101, 18 S. Ct. 264 (42 L. Ed. 673). In Sturgeon River Boom Co. v. W. H. Sawyer Lumber Co. (C. C.) 89 F. 113, it was said: “I think it is neeessary that it should appear from the pleadings at the time of the removal that the requisite sum is in controversy, and that the averment in the petition is not competent to show such fact in the absence of proper pleadings to support it.” It seems further to be the rule that it is the claim of the plaintiff, and not the counterclaim of the defendant, which fixes the amount in dispute in determining the right to remove the cause. See McKown v. Kansas & T. Coal Co. (C. C.) 105 F. 657, and cases cited. There is, however, a conflict of authority on this point, which was pointed out by that case. See, also, note 180, under section 71, tit. 28, USCA p. 99. In Lewis on Removal of Causes, p. 187, he says: “The amount in controversy must be determined primarily from the initial pleading. The plaintiff may voluntarily and conclusively determine the amount to which his recovery shall be limited. The removability of an action from the State to the Federal courts depends upon the pleadings- and the state of the record at the time the petition for removal is filed.” In Simkins Federal Practice, Revised Edition, p. 1117, the author states: “The jurisdiction depends on the amount in controversy, as stated in the original petition in the State court, and not the counterclaim of the defendant, is said to be the rule in Illinois C. R. Co. v. A. Waller & Co. (C. C.) 164 F. 359; Falls Wire Mfg." }, { "docid": "22933361", "title": "", "text": "a determination of whether or not plaintiff’s voluntary action in the State Court constituted in effect a severance of the cause of action as to the Southern Pacific Company. In Powers v. Chesapeake & Ohio R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673, it was held that a cause not removable when originally filed in the State Court may thereafter become removable by the discontinuance of the action against the resident defendants. The recital of facts in that case, however, disclose that the “discontinuance” was by a dismissal of the complaint as to these defendants. The cited case is therefore not fully determinative of the question before* us. A situation similar to the situation before us was presented in Berry v. St. Louis & S.F.R. Co., C.C., 118 F. 911, pages 913, 914, and in a well reasoned opinion the Court said: “In the case at hand the plaintiff abandoned her right to a joint judgment by demanding a trial as to one defendant in the absence of service upon the other. The course of trial and the character of the verdict and judgment in a joint action render any other conclusion impossible. * * * “Even if the plaintiff subsequently persisted in her pursuit of the Memphis Company, and the court finally succeeded in acquiring jurisdiction, the ultimate result would be separate trials before separate juries under diverse conditions; separate verdicts resulting in separate judgments * * “I am aware that the supreme court has held in many cases that for all the purposes of a suit the cause of action is ‘whatever the plaintiff declares it to be in his pleadings’ ; but the words so employed should be read in the light of the facts which were then presented for consideration. In those cases no subsequent condition arose outside of the pleadings which might fairly be said to operate as a voluntary abandonment by the plaintiff of the character of his action as first formally declared. There are also cases in which it is held that, where the defendant whose presence prevents a removal" }, { "docid": "22868257", "title": "", "text": "meet the specific Federal jurisdictional requirement of 28 U.S.C. § 1332 that the matter in controversy exceed the sum or value of $10,000. The trial court denied this motion to remand unless plaintiff within ten days amended his complaint “to seek damages in the amount of $10,000.00 or less.” Appellant Gaitor took no further action in this regard and the case proceeded to trial by jury and ultimately resulted in verdict and judgment in favor of appel-lees. Through appropriate post-trial motions Gaitor again challenged the jurisdiction of the court not only with respect to amount in controversy but also on grounds that there was no demonstrable diversity of citizenship between Gaitor,. as plaintiff, and Peninsular & Occidental Steamship Company. The trial court denied these motions to set aside verdict and vacate judgment and denied renewed effort to remand to the state court. It is. from this order that appeal was taken. The trial court overruled all jurisdictional objections on the grounds that the action could have been maintained in the-Federal District Court in admiralty. Appellant agreed that the case could' have been brought by him in the United States District Court in admiralty had he chosen such forum, but urged that this was a case in which he could choose-his own forum and in which removal' could not be effected in the absence of a clear showing of jurisdictional amount. We agree. First, the burden of establishing jurisdiction rests upon-the party seeking to invoke it and cannot be placed upon the adversary who-challenges it. Carson v. Dunham, 121 U.S. 421, at page 425, 7 S.Ct. 1030, at page 1031, 30 L.Ed. 992; Gold-Washing & Water Company v. Keyes, 96 U.S. 199, at page 202, 24 L.Ed. 656; Crehore v. Ohio & Mississippi Railway Company, 131 U.S. 240, at page 244, 9 S.Ct. 692, at page 693, 33 L.Ed. 144; Powers v. Chesapeake & Ohio Railway Company, 169 U.S. 92, at page 101, 18 S.Ct. 264, at page 267, 42 L.Ed. 673. In McNutt v. General Motors Acceptance Corp., 298 U.S. 178, at page 189, 56 S.Ct. 780, at page 785," }, { "docid": "19846873", "title": "", "text": "this particular case the trial of these issues would involve a trial of the whole case on the merits, so far as the liability of the resident defendant Willis was concerned, and that this court should not try the whole case upon the merits as to his liability. The matter has been very fully and ably argued before me. A large number of cases have been cited, and I have read them all, and some others which seemed to throw some light upon the questions involved, and have given the matter a very thorough consideration. The questions arising upon motions to remand, where it is claimed that there is a separable controversy or a fraudulent joinder, are very difficult. However, there are certain propositions which are practically settled, and the main difficulty lies in their application. These propositions may be stated briefly as follows: 1. Where the liability of the defendants as set forth in the pleadings is joint, or joint and several, then the controversy is not separable as a matter of law, and the plaintiff’s purpose in joining the resident defendant is immaterial, as his motive in the performance of a lawful act is not open to inquiry. Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 135, 21 Sup. Ct. 67, 45 L. Ed. 121. 2. The defendant has no right to say that an action shall be separable which the plaintiff elects to make joint, and cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way, and it is well settled that an action for tort, which might have been brought against many persons, or against any one or more of them, and which is brought in the state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants to the federal court. The cause of action is the subject-matter of the controversy, and that is, for the purpose of the suit, whatever the plaintiff declares it to be in his pleadings. Chesapeake & Ohio, etc., v. Dixon," }, { "docid": "13705276", "title": "", "text": "this motion; for it is clearly held that, on a hearing of this kind, affidavits filed by a defendant seeking removal are to be considered and taken as true unless denied by plaintiff seeking a remand. “While it is true that difficult questions often arise upon motions to remand where it is claimed that there is a separable controversy or a fraudulent joinder as a basis for removal, yet” as. declared in the case of Lynes v. Standard Oil Co. (D. C.) 300 F. 812, 815, “there are certain well settled principles of law applicable in such cases which together with supporting authorities may be stated briefly and as follows.” Here follows an enumeration of an even dozen guiding principles which we are quoting from the Lynes Case with discussion of their peculiar application to the facts of the ease at bar. “1. Where the liability of the defendants as set forth in the pleadings is joint, or joint and several, then the controversy is not separable as a matter of law, and the plaintiff’s purpose in joining the resident defendant is immaterial, as his motive in the performance of a lawful act is not open to inquiry. Chesapeake & Ohio Railway Co. v. Dixon, 179 U. S. 135, 21 S. Ct. 67, 45 L. Ed. 121. “2. The defendant has no right to say that an action shall be separable which the plaintiff elects to make joint, and cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way, and it is well settled that [in] an action for tort, which might have been brought against many persons, or against any one or more of them, and which is brought in the State Court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants to the federal court. The cause of action is the subject matter of the controversy, and that is, for the purpose of the suit, whatever the plaintiff declares it to be in his pleadings. Chesapeake, etc., Railway Co. v. Dixon," }, { "docid": "12708773", "title": "", "text": "which the court’s jurisdiction depends * * ****** “The sufficiency of an allegation of the facts required by statute in a petition for removal would certainly not be less than that required in a complaint originally brought here.” ****** “The rule of the Kinney case has been interpreted to allow amendments under § 1653 to cure defects of form but not of substance. Shane v. Butte Electric Ry. Co. (D.C.Mont. 1906), 150 F. 801, 816; Cline v. Belt (D.C.E.D.Ky.1942), 43 F.Supp. 538; Browne v. Hartford Fire Insurance Co. (supra). Both prior to and subsequent to the Kinney case the facts upon which removal was based were required to be affirmatively set out. That an amendment will be allowed to permit the grounds for removal to be more perfectly stated is not inconsistent with this requirement. Southern Pacific Co. v. Stewart (supra); Powers v. Chesapeake & Ohio Ry., 169 U.S. 92, 101, 18 S.Ct. 264, 42 L.Ed. 673 (1897). This only means that an amendment will be allowed when there are enough facts alleged in the petition and accompanying pleadings to enable the court to determine without more that the basis for removal is present. This distinction was pointed up in the decision of Martin’s Adm’r. v. Baltimore & Ohio Ry., 151 U.S. 673, 690-691, 14 S.Ct. 533, 540, 38 L.Ed. 311 (1893): The incidental suggestion * * * that the petition for removal might be amended in the Circuit Court [i. e. District Court] as to the form of stating the jurisdictional facts, assumes that those facts are already substantially stated therein, and accords with later decisions, by which such amendments may be allowed when, and only when, the petition as presented to the state court, shows upon its face sufficient ground for removal. Carson v. Dunham, 121 U.S. 421, 427 [7 S.Ct. 1030, 30 L.Ed. 992]; Crehore v. Ohio & Mississippi Railroad, 131 U.S. 240 [9 S.Ct. 692, 33 L.Ed. 144]; Jackson v. Allen, 132 U.S. 27 [10 S.Ct. 9, 33 L.Ed. 249].’ “But where the essential facts necessary to justify removal are not alleged, either perfectly or imperfectly," }, { "docid": "348550", "title": "", "text": "case of Wilson v. Republic Iron Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144, as follows: “If a removal is effected, the plaintiff may, by a motion to remand, plea, or answer, take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court (Stone v. South Carolina, 117 U.S. 430, 432, 6 S.Ct. 799, 29 L.Ed. 962; Chicago, Rock Island & Pacific Ry. Co. v. Dowell, 229 U.S. 102, 113, 33 S.Ct. 684, 57 L.Ed. 1090; Chesapeake & Ohio Ry. Co. v. Cockrell, supra, 232 U.S. [146] 152, 154, 34 S.Ct. 278, 58 L.Ed. 544), and at the hearing the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding (Carson v. Dunham, 121 U.S. 421, 425, 426, 7 S.Ct. 1030, 30 L.Ed. 992).” The burden of proving this jurisdictional averment rests equally upon the defendant who seeks to remove as upon the plaintiff in an original action in the United States Court, and the following language of the United States Supreme Court in the case of McNutt v. General Motors &c. Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135, is relevant: “The prerequisites to the exercise of jurisdiction are specifically defined and the plain import of the statute is that the District Court is vested with authority to inquire at any time whether these conditions have been met. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing. If he does make them, an inquiry into the existence of jurisdiction is obviously for the purpose of determining whether the facts support his allegations. In the nature of things, the authorized inquiry is primarily directed to the one who claims that the power of the court should be exerted in his behalf. As he is seeking relief subject" }, { "docid": "5756544", "title": "", "text": "alleged, either perfectly or imperfectly, then the case must be remanded. Stevens v. Nichols, 130 U.S. 230, 9 S.Ct. 518, 32 L.Ed. 914 (1888); Crehore v. Ohio & Mississippi Railroad Co., 131 U.S. 240, 9 S.Ct. 692, 33 L.Ed. 144 (1888); Jackson v. Allen, 132 U.S. 27, 10 S.Ct. 9, 33 L.Ed. 249 (1889) ; La Confiance Compagnie Anonyme D’Assurance Contre L'Incendie v. Hall, 137 U.S. 61, 11 S.Ct. 5, 34 L.Ed. 573 (1890); Kellam v. Keith, 144 U.S. 568, 12 S.Ct. 922, 36 L.Ed. 544 (1891). The necessity for an allegation of facts has been reaffirmed by the Supreme Court in Chesapeake & Ohio Ry. v. Cockrell, 232 U.S. 146, 151, 34 S.Ct. 278, 279, 58 L.Ed. 544 (1913): “The right of removal from the state to a federal court, as is well understood, exists only in certain enumerated classes of cases. To the exercise of the right, therefore, it is essential that the case be shown to be within one of those classes, and this must be done by a verified petition setting forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises. It is not enough to allege in terms that the case is removable or belongs to one of the enumerated classes, or otherwise to rest the right upon mere legal conclusions. As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 202 [24 L.Ed. 656]; Carson v. Dunham, 121 U.S. 421, 426 [7 S.Ct. 1030, 30 L.Ed. 992]; Crehore v. Ohio & Mississippi Railroad Co., 131 U.S. 240, 244 [9 S.Ct. 692, 33 L.Ed. 144]; Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 101 [18 S.Ct. 264, 42 L.Ed. 673].” An absence of an allegation cannot" }, { "docid": "22868258", "title": "", "text": "agreed that the case could' have been brought by him in the United States District Court in admiralty had he chosen such forum, but urged that this was a case in which he could choose-his own forum and in which removal' could not be effected in the absence of a clear showing of jurisdictional amount. We agree. First, the burden of establishing jurisdiction rests upon-the party seeking to invoke it and cannot be placed upon the adversary who-challenges it. Carson v. Dunham, 121 U.S. 421, at page 425, 7 S.Ct. 1030, at page 1031, 30 L.Ed. 992; Gold-Washing & Water Company v. Keyes, 96 U.S. 199, at page 202, 24 L.Ed. 656; Crehore v. Ohio & Mississippi Railway Company, 131 U.S. 240, at page 244, 9 S.Ct. 692, at page 693, 33 L.Ed. 144; Powers v. Chesapeake & Ohio Railway Company, 169 U.S. 92, at page 101, 18 S.Ct. 264, at page 267, 42 L.Ed. 673. In McNutt v. General Motors Acceptance Corp., 298 U.S. 178, at page 189, 56 S.Ct. 780, at page 785, 80 L.Ed. 1135, the court referring to the prerequisites to the exercise of jurisdiction stated: “They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing. If he does make them, an inquiry into the existence of jurisdiction is obviously for the purpose of determining whether the facts support his allegations. In the nature of things, the authorized inquiry is primarily directed to the one who claims that the power of the court should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows that he must carry throughout the litigation the burden of showing that he is properly in court. The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved" }, { "docid": "5756542", "title": "", "text": "brevity of statement which the rules contemplate.” This court regards amended Form 2 as indicating the minimum which may be regarded as “sufficient” allegation of “the facts” which must be contained in a petition for removal. Harris Trustee v. Standard Accident Insurance Co. (supra). The rule of the Kinney case has been interpreted to allow amendments under § 1653 to cure defects of form but not of substance. Shane v. Butte Electric Ry. Co. (D.C.Mont.1906), 150 F. 801, 816; Cline v. Belt (D.C.E.D.Ky.1942), 43 F.Supp. 538; Browne v. Hartford Fire Insurance Co. (supra). Both prior to and subsequent to the Kinney case the facts upon which removal was based were required to be affirmatively set out. That an amendment will be allowed to permit the grounds for removal to be more perfectly stated is not inconsistent with this requirement. Southern Pacific Co. v. Stewart (supra); Powers v. Chesapeake & Ohio Ry., 169 U.S. 92, 101, 18 S.Ct. 264, 42 L.Ed. 673 (1897). This only means that an amendment will be allowed when there are enough facts alleged in the petition and accompanying pleadings to enable the court to determine without more that the basis for removal is present. This distinction was pointed up in the decision of Martin’s Adm’r. v. Baltimore & Ohio Ry., 151 U.S. 673, 690-691, 14 S.Ct. 533, 540, 38 L.Ed. 311 (1893): “The incidental suggestion * * that the petition for removal might be amended in the Circuit Court [i. e. District Court] as to the form of stating the jurisdictional facts, assumes that those facts are already substantially stated therein, and accords with later decisions, by which such amendments may be allowed when, and only when, the petition as presented to the state court, shows upon its face sufficient ground for removal. Carson v. Dunham, 121 U.S. 421, 427 [7 S.Ct. 1030, 30 L.Ed. 992]; Crehore v. Ohio & Mississippi Railroad, 131 U.S. 240 [9 S. Ct. 692, 33 L.Ed. 144]; Jackson v. Allen, 132 U.S. 27 [10 S.Ct. 9, 33 L. Ed. 249].” But where the essential facts necessary to justify removal are not" }, { "docid": "13705275", "title": "", "text": "888; Great Northern Railway Co. v. Alexander, 246 U. S. 276, 36 S. Ct. 237, 62 L. Ed. 713. “The petition for removal cannot be looked to to supply the basis of removal, except in those cases where the petition for removal sets up facts to show that the plaintiff has framed his pleading to avoid federal jurisdiction in a case where the controversy arises from the Constitution or laws of the United States, as in the cas'e of an action against a receiver of a federal court, where, after trial of the matter in the State courts, no writ of error could be had to the Supreme Court of the United States to settle the rightfulness of the federal claim.” Anderson v. Trotter, supra. Or “ * * * unless it [the petition] alleges facts showing that plaintiff framed [his] pleading to avoid federal jurisdiction.” Anderson v. Trotter, supra. Likewise, in considering this motion, this court has given full credit to the affidavit filed by the defendant railroad company for the purpose of resisting this motion; for it is clearly held that, on a hearing of this kind, affidavits filed by a defendant seeking removal are to be considered and taken as true unless denied by plaintiff seeking a remand. “While it is true that difficult questions often arise upon motions to remand where it is claimed that there is a separable controversy or a fraudulent joinder as a basis for removal, yet” as. declared in the case of Lynes v. Standard Oil Co. (D. C.) 300 F. 812, 815, “there are certain well settled principles of law applicable in such cases which together with supporting authorities may be stated briefly and as follows.” Here follows an enumeration of an even dozen guiding principles which we are quoting from the Lynes Case with discussion of their peculiar application to the facts of the ease at bar. “1. Where the liability of the defendants as set forth in the pleadings is joint, or joint and several, then the controversy is not separable as a matter of law, and the plaintiff’s" }, { "docid": "23702903", "title": "", "text": "to obtain a joint judgment, and whether there was colorable ground for it shown. It is not to decide whether a flaw could be picked in the complaint on special demurrer. Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 194, 33 S.Ct. 250, 57 L.Ed. 473; Morris v. E. I. Du Pont De Nemours & Co. et al. (C.C.A.8) 68 F.(2d) 788, 791. Even though a plaintiff has misconceived his cause of action and has no right to maintain it against the defendants jointly, that does not change an alleged joint cause of action into a separable controversy for the purpose of removal. The law looks to the case made in the pleadings and determines whether the state court shall be required to surrender its jurisdiction to the federal court. Alabama Great Southern R. Co. v. Thompson, 200 U.S. 206, 218, 219, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Chicago, B. & Q. R. Co. v. Willard, supra, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Morris v. E. I. Du Pont De Nemours & Co. et al., supra, 68 F.(2d) 788, 791. By a petition for removal, a nonresident defendant may show that a joinder, fair upon its face, is a mere sham or fraudulent device to prevent removal, but the showing must consist of a statement of facts leading to that conclusion apart from the pleader’s deductions. Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 152, 34 S.Ct. 278, 58 L.Ed. 544; Wecker v. National Enameling & Stamping Co., 204 U.S. 176, 182, 183, 185, 27 S.Ct. 184, 51 L.Ed. 430, 9 Ann.Cas. 757; Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144; Morris v. E. I. Du Pont De Nemours & Co. et al., supra, 68 F.(2d) 788, 791. In deciding the question of fraudulent joinder, the court must keep in mind that the doubtful issues of law and fact in the case are to be tried in the court which has jurisdiction, and are not to be determined in" }, { "docid": "15662097", "title": "", "text": "her to Buffalo for repairs and that in so doing such defendant and the defendant Cowles Towing Company which it engaged to do the work were negligent and caused damage to the barge. The plaintiff claims that the action is for the joint negligence of the defendants and is not removable where, as here, one of the joint tort-feasors is a resident. The defendant insurance company claims that the right of action is severable and that in any event no action for negligence will lie. The pertinent allegations of the complaint are given hereinafter. The rule is that when a resident plaintiff sues both a resident and a nonresident in the state court, the action is not removable to the federal court unless it is severable and the plaintiff could under his complaint proceed against each defendant separately. If the complaint states a joint and not a sever-able liability of the defendants, the case is not removable under section 28 of the Judicial Code (28 USCA § 71). Powers v. Chesapeake & Ohio Railroad Co., 169 U. S. 92, 18 S. Ct. 264, 42 L. Ed. 673; Chesapeake & Ohio R. Co. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121; Hay v. May Dept. Stores Co., 271 U. S. 318, 46 S. Ct. 498, 70 L. Ed. 965; Lynes v. Standard Oil Company (D. C.) 300 F. 812. Upon a motion in the federal court to remand, the burden is on the removing defendant to show that the case is removable. Carson v. Dunham, 121 U. S. 421, 425, 7 S. Ct. 1030, 30 L. Ed. 992; Wilson v. Republic Iron & Steel Company, 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144. The removal in this case was obtained upon a petition or affidavit which did not state that the liability was severable but defendant insurance company now contends that it is severable. The burden is on the defendant of showing that the cause of action is severable and the case removable. By the terms of the policy, the insurance" } ]

[ { "docid": "22586121", "title": "", "text": "that they were violating Champion’s rights. First, it is clearly established that the Officers’ use of pepper spray against Champion after he was handcuffed and hobbled was excessive. In Adams v. Metiva, 31 F.3d 375 (6th Cir.1994), a plaintiff was sprayed with mace by authorities. Id. at 378. The police then handcuffed the plaintiff, placed him in his car, and according to the plaintiff and two witnesses, continued to spray mace in the plaintiffs face even though he was already blinded and incapacitated. Id. We held that this use of force was excessive, and we denied the officers qualified immunity because “[a] reasonable person would know that spraying mace on a blinded and incapacitated person ... would violate the right to be free from excessive force.” Id. at 387; see also Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir.2002) (“Courts have consistently concluded that using pepper spray is excessive force in cases where ... the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.”). In addition to prior precedent, the Officers’ training demonstrates that they were aware of Champion’s clearly established right to be free from this type of excessive force. The Officers were taught that pepper spraying a suspect after the individual was incapacitated constitutes excessive force. Sergeant Robert Allen, who testified about the training the Nashville Police Officers received, agreed that if Champion were handcuffed and hobbled, spraying him with pepper spray would be excessive. Second, it also clearly established that putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force. This appeal gives us no cause to consider whether leaving a bound suspect on his or her stomach without more constitutes excessive force that violates a suspect’s clearly established Fourth Amendment rights. This is neither a “positional asphyxia” case nor a case in which the officers lightly touched or placed incidental pressure on Champion’s back while he was face down. The asphyxia was caused by the combination of the" } ]

[ { "docid": "7081532", "title": "", "text": "injury associated with a taser is de minimis. Rather, the court balanced the Graham factors with the extent of the force used and held that the officer had a \"legitimate reason” to deploy the taser. 582 F.3d at 850. . In the Eighth Amendment context, courts have recognized that the pain inflicted by a taser can satisfy the objective component of cruel and unusual punishment, which requires a showing of significant harm. Hickey, 12 F.3d at 757. . See, e.g., Brown, 574 F.3d at 499 (affirming denial of summary judgment on qualified immunity grounds, holding that \"the law was sufficiently clear [in October 2005] to inform a reasonable officer that it was unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or resisting arrest, who posed little to no threat to anyone’s safety, and whose only noncompliance with the officer’s commands was to disobey two orders to end her phone call to a 911 operator”); Samuelson v. City of New Ulm, 455 F.3d 871, 877 (8th Cir.2006) (reversing grant of summary judgment on qualified immunity grounds where plaintiff alleged that in January 2003 the defendants \"stepped on his head while handcuffing him,” and beat, hit and kicked him, even though he was not resisting arrest); Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th Cir.1997) (concluding that the use of force was not objectively reasonable where the plaintiff was handcuffed and hobbled in the back seat of a squad car and the defendant slapped her in the face and punched her in the chest); see also Landis v. Baker, 297 Fed.Appx. 453, 463 (6th Cir.2008) (\"[T)he officers should have known that the gratuitous or excessive use of a taser would violate a clearly established constitutional right.”); cf. Brown, 574 F.3d at 499-500 (\"[Pjrisoners have a clearly established right to be free from a Taser shock or its equivalent in the absence of a security threat.”)." }, { "docid": "14552373", "title": "", "text": "that he was kicking reflexively rather than deliberately is plausible given that a taser incapacitates the subject by causing “immediate loss of ... neuromuscular control and the ability to perform coordinated action for the duration of the impulse.” Taser Int’l Website, supra. In addition, the photographs, which depict at least five separate marks on Michaels’ body, lend some credibility to the Plaintiffs’ story. The Plaintiffs have thus submitted evidence sufficient to support their version of the facts. The next question under the Saucier analysis is whether the Plaintiffs’ evidence indicates that Officer Grassnig used excessive force in violation of the Fourth Amendment. This question hinges on whether Officer Grassnig’s use of the taser was objectively reasonable under the circumstances. See Graham, 490 U.S. at 396, 109 S.Ct. 1865. Balancing Officer Grassnig’s use of force as described by Plaintiffs — the repeated, gratuitous use of the taser- — against Michaels’ right to be free from excessive force, and using the three factors listed in Graham as a guide, the Plaintiffs’ evidence establishes that a jury could find that Officer Grassnig’s conduct rose to the level of a constitutional violation. The governmental interest in using reasonable force to accomplish an arrest is clear and strong. However, it is also well-established that “the gratuitous use of force on a suspect who has already been subdued and placed in handcuffs is unconstitutional.” See e.g., Bultema v. Benzie County, 146 Fed.Appx. 28, 35 (6th Cir.2005) (citing McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir.1988)); Roberts v. Manigold, 240 Fed.Appx. 675, 677-78 (6th Cir.2007) (citing Bultema); Griffith v. Coburn, 473 F.3d 650, 658 (6th Cir.2007); St. John, 411 F.3d at 774-75; United States v. Sanders, 719 F.2d 882, 887 (6th Cir.1983). Moreover, a line of Sixth Circuit cases holds that the use of non-lethal, temporarily incapacitating force on a handcuffed suspect who no longer poses a safety threat, flight risk, and/or is not resisting arrest constitutes excessive force. See Bultema, 146 Fed.Appx. at 35 (citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004)), cert. denied, 544 U.S. 975, 125 S.Ct. 1837, 161" }, { "docid": "14981599", "title": "", "text": "days from having my baby,” they applied the Taser to her three times in about one minute because she continued to refuse to exit the vehicle, clutching the steering wheel. Id. The court surveyed circuit case law that existed before the traffic stop in November 2004. Id. at 446-47. The court held that the use of force was excessive, but concluded that, as of 2004, the law was not clearly established and granted qualified immunity. Id. at 448. The court followed its prior decision in which the Ninth Circuit held that, in a “tasing [that] took place in 2005,” “in that year ‘there was no Supreme Court decision or decision of our court addressing’ the use of a taser” in those circumstances. Id. at 448 (quoting Bryan v. MacPherson, 630 F.3d 805, 833 (9th Cir.2010)). Similarly, the Sixth Circuit held that “it was [not] clearly established in May 2007 that using a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed amounted to excessive force.” Hagans v. Franklin Cnty. Sheriffs Office, 695 F.3d 505, 509 (6th Cir.2012). We agree with the Ninth Circuit’s and the Sixth Circuit’s conclusion that, as of October 2006, the law was not clearly established that using a Taser to gain compliance of a unarmed, seated suspect for resisting arrest and failing to follow verbal commands was clearly excessive and objectively unreasonable. The Carrolls point to no case clarifying the law between 2005 (when the Ninth Circuit found the law to be unclear) and the tasing in this case in October 2006, and we are aware of none. Therefore, we conclude that Deputy Viruette is entitled to qualified immunity on the Carrolls’ excessive-force claim. 2. Deputies Celestial’s and Ellington’s Use of Force to Get Barnes on the Ground and Handcuffed Deputies Celestial and Sims responded to Viruette’s call for backup from about a mile away and arrived soon after Viruette applied the Taser to Barnes, as the struggle moved from the living room into the kitchen. Viruette was continually giving Barnes verbal commands to get on the ground. At this point, neither" }, { "docid": "11531404", "title": "", "text": "flee or resist arrest was excessive force); and Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir.2007) (tasing a non-violent misdemeanant who was not offering any resistance was excessive force). One decision bucks this trend — kind of. In two consolidated cases, the en banc Ninth Circuit held that officers used excessive force by tasing suspects who offered minimal resistance. Mattos v. Agarano, 661 F.3d 433 (9th Cir.2011) (en banc). In the first case, a pregnant woman whom officers pulled over for speeding refused to sign a citation and refused to get out of her car, leading the officers to tase her three times and to handcuff her. Id. at 436-38. In the second case, an officer trying to arrest a domestic-abuse suspect tased the suspect’s wife when she failed to move out of the way. Id. at 438-39. Whatever glimmer of hope the Ninth Circuit’s holdings on the constitutional issue offer Hagans is closed by the reality that the court held the officers were entitled to qualified immunity because the right was not clearly established at the time of the encounters. Id. at 448, 452. If it did not violate clearly established law to tase a pregnant mother who refused to sign a traffic citation in November 2004, how could it violate clearly established law to tase an out-of-control, shirtless man strung-out on drugs who was thrashing about with two officers on the ground in May 2007? Hagans has not shown any changes in the law over that period or for that matter any law specific to the Sixth Circuit that would clearly establish the illegality of this far more reasonable use of a taser. This line between suspects who actively resist arrest and those who comply with officers’ commands may or may not hold as to the ultimate constitutional question. The taser remains a relatively new technology, and courts and law enforcement agencies still grapple with the risks and benefits of the device. Even as of a year ago, however, it could be said that tasers carry “a significantly lower risk of injury than physical" }, { "docid": "14552388", "title": "", "text": "if this particular right is not ‘clearly established.’ The Sixth Circuit has repeatedly held that “the right of people who pose no safety risk to the police to be free from gratuitous violence during arrest” is clearly established. See, e.g., Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 688 (6th Cir.2006). In fact, the Sixth Circuit has applied this rule in several cases involving claims that a police officer used excessive force in pepper spraying or tas-ing a suspect. See, e.g., Roberts, 240 Fed.Appx. at 677-78; Bultema, 146 Fed.Appx. at 37; Champion, 380 F.3d at 903; see also Landis, 515 F.Supp.2d at 814-15 (analogizing pepper spray with tasers for qualified immunity purposes). These cases establish that the use of a taser or chemical spray, although nonlethal, may be excessive if it is gratuitous. As discussed above in connection with prong one, construing the facts in the light most favorable to the Plaintiffs, a reasonable jury could conclude that Officer Grassnig tased Michaels gratuitously and unreasonably. Therefore, based on the well-established line of authority prohibiting the gratuitous use of nonlethal, temporarily incapacitating force, it would be clear to a reasonable officer that the manner in which Officer Grassnig allegedly used the taser on Michaels was unlawful under the circumstances. The ‘clearly established’ prong of the Saucier test is thus satisfied. The Plaintiffs have satisfied both prongs of the Saucier test as to Officer Grassnig. Consequently, Officer Grassnig is not entitled to qualified immunity and the motion for summary judgment is DENIED as to Officer Grassnig. C. THE IMPACT OF MICHAELS’ RESISTING ARREST CONVICTION UNDER HECK v. HUMPHREY The Officers argue that Michaels’ conviction for resisting arrest in juvenile court precludes a finding of excessive force. (Doc. 17-1 at pp. 6-7.) This issue impli cates the Sixth Circuit’s interpretation of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held that § 1983 claims cannot be maintained if the claims imply the invalidity of a prior state court conviction. Heck, 512 U.S. at 487, 114 S.Ct. 2364; see also Swiecicki v. Delgado," }, { "docid": "2383261", "title": "", "text": "partition separating her from the officer). Unlike the ar-restees in these three cases, even Travis admits that he continued fighting with Sweeney after the first application of the taser, so he was not subdued. And even though he was handcuffed, he had moved his hands to the front of his body, which allowed him to overpower Sweeney at times. Courts generally hold that the use of a taser against an actively resisting suspect either does not violate clearly established law or is constitutionally reasonable. See Clarett v. Roberts, 657 F.3d 664, 674-75 (7th Cir.2011) (affirming defense verdict where defendant used taser three times on plaintiff when she blocked the doorway to her son’s bedroom after several officers had entered and defendant heard a commotion in the bedroom and believed offi cers needed help; the second and third tasings were deployed because plaintiff was kicking and flailing and continuing assaultive behavior as defendant was arresting her); United States v. Norris, 640 F.3d 295, 303 (7th Cir.2011) (use of taser on defendant was reasonable where defendant had “displayed an unwillingness to accede to reasonable police commands, and his actions suggested an intent to use violence to fend off further police action”); Forrest v. Prine, 620 F.3d 739, 745-46 (7th Cir.2010) (affirming summary judgment for officer on plaintiffs Fourteenth Amendment excessive-force claim, where plaintiff was a large man in a confined area who was intoxicated, defiant, belligerent, was clenching his fists and yelling obscenities, and had attacked another officer earlier that evening); see also Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509-10 (6th Cir.2012); Marquez v. City of Phoenix, 693 F.3d 1167, 1175 (9th Cir.2012); Hoyt v. Cooks, 672 F.3d 972, 979-80 (11th Cir.2012); McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir.2011); Zivojinovich v. Barrier, 525 F.3d 1059, 1073 (11th Cir.2008); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th. Cir.2004); Hinton v. City of Elwood, Kan., 997 F.2d 774, 781 (10th Cir.1993). Insofar as Travis continued to resist after the first tasing, Deputy Sweeney did not violate clearly established law by using the taser in drivestun mode several more times" }, { "docid": "11531401", "title": "", "text": "others, before and after May 2007, adhere to this line: If a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him. Consider cases from this circuit first. In Williams v. Sandel, 433 Fed.Appx. 353 (6th Cir.2011), officers confronted a suspect who was high on ecstasy, nude and jogging along the interstate at midnight. Id. at 354. The suspect refused to be handcuffed, prompting officers to tase him thirty-seven times.(and to use batons and pepper spray as.' well) until he stopped resisting. Id. at 362. We held the officers’ use of force was reasonable. Id. at 363. Or consider Caie v. W. Bloomfield Twp., 485 Fed.Appx. 92, No. 11-1378, 2012 WL 2301648 (6th Cir. June 18, 2012). After two officers wrestled the suspect to the ground, he refused to move his arms from under his body, prompting a third officer to tase him. Id. at 94, 2012 WL 2301648 at *2. The tasing was reasonable given the suspect’s “aetive[ ] resistance] [to] the officers’ attempts to secure his arms behind his back.” Id. at 97, 2012 WL 2301648 at *4; see also Williams v. Ingham, 373 Fed.Appx. 542, 548 (6th Cir.2010) (officers acted reasonably by tasing suspect who would not move his hands from under his body). By contrast, when we have found excessive force, the suspects were compliant or had stopped resisting. In Kijowski v. City of Niles, 372 Fed.Appx. 595 (6th Cir.2010), officers used excessive force by tasing a wedding guest who was sitting in his truck, not disobeying police commands. Id. at 600-01. And in Landis v. Baker, 297 Fed.Appx. 453 (6th Cir.2008), officers used excessive force by repeatedly tasing a suspect who was pinned on the ground with his face submerged in muddy water. Id. at 464; see also Roberts v. Manigold, 240 Fed.Appx. 675, 676 (6th Cir.2007) (officers used excessive force by repeatedly tasing suspect even though he was “completely pinned”); cf. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004) (officers used excessive force by dousing suspect with pepper" }, { "docid": "11531405", "title": "", "text": "was not clearly established at the time of the encounters. Id. at 448, 452. If it did not violate clearly established law to tase a pregnant mother who refused to sign a traffic citation in November 2004, how could it violate clearly established law to tase an out-of-control, shirtless man strung-out on drugs who was thrashing about with two officers on the ground in May 2007? Hagans has not shown any changes in the law over that period or for that matter any law specific to the Sixth Circuit that would clearly establish the illegality of this far more reasonable use of a taser. This line between suspects who actively resist arrest and those who comply with officers’ commands may or may not hold as to the ultimate constitutional question. The taser remains a relatively new technology, and courts and law enforcement agencies still grapple with the risks and benefits of the device. Even as of a year ago, however, it could be said that tasers carry “a significantly lower risk of injury than physical force” and that the vast majority of individuals subjected to a taser— 99.7% — suffer no injury or only a mild injury. John H. Laub, Director, Nat’l Inst, of Justice, Study of Deaths Following Electro Muscular Disruption 31 (2011); see also Mattos, 661 F.3d at 454 (Kozinski, J., concurring in part and dissenting in part). Acknowledging that he was actively resisting arrest, Hagans points out that some factors relevant to the inquiry cut against Officer Ratcliffs decision to employ the taser. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As to whether Hagans posed “an immediate threat to the safety of the officers or others,” id. at 396, 109 S.Ct. 1865, Ratcliff testified that he did not see Hagans land any kicks or punches on the other officers, the other officers did not appear to be injured or bleeding, and he did not hear Hagans make any threats. As to whether Hagans was “attempting to evade arrest by flight,” id., Ratcliff testified that Hagans, who was on the" }, { "docid": "19882631", "title": "", "text": "of directly analogous case law, if the actions taken were not only unconstitutional, but patently so, the officer will be deemed to have violated clearly established statutory or constitutional rights of which a reasonable person would have known. See Cunningham v. Gates, 229 F.3d at 1290. After reviewing the case law, the Court concludes that in 2004, when Mr. Beaver was arrested, the contours of Fourth Amendment jurisprudence and, in particular, excessive force claims of this type, were not sufficiently clear that a reasonable officer would have understood that multiple tasings of Mr. Beaver under these circumstances violated his rights. Most of the decisions finding police officers liable involve facts that are much more egregious than those presented in this case. For example, in Davis v. City of Las Vegas, the Ninth Circuit found that a police officer used excessive force when he slammed an unarmed suspect head-first against a wall, thereby breaking his neck, and then threw the suspect onto the floor, kneed him in the back, and punched him in the face. 470 F.3d. at 1055. Nevertheless, there are some decisions that involve situations similar to the instant case, where the use of force by the police was less severe than that in Davis, and the suspect’s actions were analogous. In Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005) (en banc), for instance, the Ninth Circuit found that defendants were not entitled to summary judgment when the evidence, viewed in the light most favorable to plaintiff, established that police officers released a police dog against the plaintiff while he was already pinned to the ground. Id. at 702. Although the Ninth Circuit observed that plaintiff had continually ignored the officers’ requests to place his hands on his head, the court found that plaintiffs resistance was not particularly “bellicose” and did not justify the officers’ use of force. Id. at 703. Similarly, in Harveston v. Cunningham, 216 Fed.Appx. 682 (9th Cir.2007), the Ninth Circuit found that a police officer used excessive force when he used pepper spray against a suspect who was already handcuffed and on the" }, { "docid": "11531403", "title": "", "text": "spray after he was immobilized with handcuffs and leg shackles and stopped resisting). A suspect’s active resistance also marks the line between reasonable and unreasonable tasing in other circuits. Compare McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir.2011) (tasing suspect who bolted toward second-story window in an attempt to escape was not excessive force); Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir.2004) (tasing suspect who acted belligerently and refused to provide his license and registration after a traffic stop was not excessive force); and Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir.1993) (tasing suspect three times who actively resisted officers’ attempts to handcuff him was not excessive force); with Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.2010) (tasing non-resistant suspect was excessive force); Oliver v. Fiorino, 586 F.3d 898, 906-07 (11th Cir.2009) (tasing suspect ten times was excessive force because he stopped resisting after the first shock); Brown v. City of Golden Valley, 574 F.3d 491, 498-99 (8th Cir.2009) (tasing car passenger who was not attempting to flee or resist arrest was excessive force); and Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir.2007) (tasing a non-violent misdemeanant who was not offering any resistance was excessive force). One decision bucks this trend — kind of. In two consolidated cases, the en banc Ninth Circuit held that officers used excessive force by tasing suspects who offered minimal resistance. Mattos v. Agarano, 661 F.3d 433 (9th Cir.2011) (en banc). In the first case, a pregnant woman whom officers pulled over for speeding refused to sign a citation and refused to get out of her car, leading the officers to tase her three times and to handcuff her. Id. at 436-38. In the second case, an officer trying to arrest a domestic-abuse suspect tased the suspect’s wife when she failed to move out of the way. Id. at 438-39. Whatever glimmer of hope the Ninth Circuit’s holdings on the constitutional issue offer Hagans is closed by the reality that the court held the officers were entitled to qualified immunity because the right" }, { "docid": "2383262", "title": "", "text": "“displayed an unwillingness to accede to reasonable police commands, and his actions suggested an intent to use violence to fend off further police action”); Forrest v. Prine, 620 F.3d 739, 745-46 (7th Cir.2010) (affirming summary judgment for officer on plaintiffs Fourteenth Amendment excessive-force claim, where plaintiff was a large man in a confined area who was intoxicated, defiant, belligerent, was clenching his fists and yelling obscenities, and had attacked another officer earlier that evening); see also Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509-10 (6th Cir.2012); Marquez v. City of Phoenix, 693 F.3d 1167, 1175 (9th Cir.2012); Hoyt v. Cooks, 672 F.3d 972, 979-80 (11th Cir.2012); McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir.2011); Zivojinovich v. Barrier, 525 F.3d 1059, 1073 (11th Cir.2008); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th. Cir.2004); Hinton v. City of Elwood, Kan., 997 F.2d 774, 781 (10th Cir.1993). Insofar as Travis continued to resist after the first tasing, Deputy Sweeney did not violate clearly established law by using the taser in drivestun mode several more times until Travis was subdued. Furthermore, although Travis claims that Sweeney pulled him from the car, threw him on the ground, gave him “the knee bomb,” and tased him three more times on his back, he does not contend that he had ceased resisting or fighting with Sweeney at that point. Indeed, it is undisputed that Sweeney used the taser until Travis stopped fighting but did not use it thereafter, suggesting that Sweeney used no more force than was necessary to gain control of the actively resisting Travis. And even assuming that Travis had ceased resisting prior to these last three tasings, Deputy Sweeney reasonably could have believed that Travis had not ceased resisting. See Brooks, 653 F.3d at 487 (“[Controlling law would not have communicated to a reasonable officer the illegality of applying pepper spray to an arrestee who has ceased active, physical resistance for a couple of seconds but has not submitted to the officer’s authority, has not been taken into custody and still arguably could pose a threat of flight or further resistance.”);" }, { "docid": "11531402", "title": "", "text": "the officers’ attempts to secure his arms behind his back.” Id. at 97, 2012 WL 2301648 at *4; see also Williams v. Ingham, 373 Fed.Appx. 542, 548 (6th Cir.2010) (officers acted reasonably by tasing suspect who would not move his hands from under his body). By contrast, when we have found excessive force, the suspects were compliant or had stopped resisting. In Kijowski v. City of Niles, 372 Fed.Appx. 595 (6th Cir.2010), officers used excessive force by tasing a wedding guest who was sitting in his truck, not disobeying police commands. Id. at 600-01. And in Landis v. Baker, 297 Fed.Appx. 453 (6th Cir.2008), officers used excessive force by repeatedly tasing a suspect who was pinned on the ground with his face submerged in muddy water. Id. at 464; see also Roberts v. Manigold, 240 Fed.Appx. 675, 676 (6th Cir.2007) (officers used excessive force by repeatedly tasing suspect even though he was “completely pinned”); cf. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004) (officers used excessive force by dousing suspect with pepper spray after he was immobilized with handcuffs and leg shackles and stopped resisting). A suspect’s active resistance also marks the line between reasonable and unreasonable tasing in other circuits. Compare McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir.2011) (tasing suspect who bolted toward second-story window in an attempt to escape was not excessive force); Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir.2004) (tasing suspect who acted belligerently and refused to provide his license and registration after a traffic stop was not excessive force); and Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir.1993) (tasing suspect three times who actively resisted officers’ attempts to handcuff him was not excessive force); with Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.2010) (tasing non-resistant suspect was excessive force); Oliver v. Fiorino, 586 F.3d 898, 906-07 (11th Cir.2009) (tasing suspect ten times was excessive force because he stopped resisting after the first shock); Brown v. City of Golden Valley, 574 F.3d 491, 498-99 (8th Cir.2009) (tasing car passenger who was not attempting to" }, { "docid": "11531406", "title": "", "text": "force” and that the vast majority of individuals subjected to a taser— 99.7% — suffer no injury or only a mild injury. John H. Laub, Director, Nat’l Inst, of Justice, Study of Deaths Following Electro Muscular Disruption 31 (2011); see also Mattos, 661 F.3d at 454 (Kozinski, J., concurring in part and dissenting in part). Acknowledging that he was actively resisting arrest, Hagans points out that some factors relevant to the inquiry cut against Officer Ratcliffs decision to employ the taser. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As to whether Hagans posed “an immediate threat to the safety of the officers or others,” id. at 396, 109 S.Ct. 1865, Ratcliff testified that he did not see Hagans land any kicks or punches on the other officers, the other officers did not appear to be injured or bleeding, and he did not hear Hagans make any threats. As to whether Hagans was “attempting to evade arrest by flight,” id., Ratcliff testified that Hagans, who was on the ground and surrounded by officers, did not pose a risk of getting away. And as to “the severity of the crime at issue,” id., Ratcliff knew only that someone had reported a disturbance and had no idea what, if any, crime Hagans had committed. Yet these factors must be assessed together with, not apart from, the reality that Hagans was out of control and continued forcefully to resist arrest. As the district court recognized, the combination of factors presented Officer Ratcliff with a “close call,” R. 63 at 14, as some factors cut in favor of using the taser while other factors cut against it. The essence of qualified immunity, however, is to give government officials cover when they resolve close calls in reasonable (even if ultimately incorrect) ways. See al-Kidd, 131 S.Ct. at 2085. The fact remains that, prior to May 2007 (and for several years after), no case in any circuit held that officers used excessive force by tasing suspects who were actively resisting arrest, even though many of them, like Hagans, were" }, { "docid": "11531400", "title": "", "text": "needless assaults by left-handed police officers during Tuesday siestas). Examples abound of an appropriate middle ground. In an excessive-force case, that might mean asking whether “a disturbed felon, set on avoiding capture through vehicular flight [that placed] persons in the immediate area ... at risk” had a clearly established right not to be shot. Brosseau v. Haugen, 543 U.S. 194, 200, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam). Or, closer to today’s case, it might mean asking “whether a misdemeanant, fleeing from the scene of a nonviolent misdemeanor, but offering no other resistance and disobeying no official command, had a clearly established right not to be tased.” Cockrell v. City of Cincinnati, 468 Fed.Appx. 491, 495 (6th Cir.2012). Defined at the appropriate level of generality. — a reasonably particularized one — the question at hand is whether it was clearly established in May 2007 that using a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed amounted to excessive force. The answer is no. Cases from this circuit and others, before and after May 2007, adhere to this line: If a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him. Consider cases from this circuit first. In Williams v. Sandel, 433 Fed.Appx. 353 (6th Cir.2011), officers confronted a suspect who was high on ecstasy, nude and jogging along the interstate at midnight. Id. at 354. The suspect refused to be handcuffed, prompting officers to tase him thirty-seven times.(and to use batons and pepper spray as.' well) until he stopped resisting. Id. at 362. We held the officers’ use of force was reasonable. Id. at 363. Or consider Caie v. W. Bloomfield Twp., 485 Fed.Appx. 92, No. 11-1378, 2012 WL 2301648 (6th Cir. June 18, 2012). After two officers wrestled the suspect to the ground, he refused to move his arms from under his body, prompting a third officer to tase him. Id. at 94, 2012 WL 2301648 at *2. The tasing was reasonable given the suspect’s “aetive[ ] resistance] [to]" }, { "docid": "14552387", "title": "", "text": "of the facts necessarily applies to prong two as well; the question is whether the constitutional right that Officer Grassnig arguably violated under the prong one analysis is clearly established. The first step in applying prong two of the Saucier test is to specifically define the right at issue. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. The Plaintiffs excessive force claims are based on the extent and timing of Officer Grassnig’s use of the taser. The evidence, construed in the light most favorable to the Plaintiffs, indicates that Officer Grassnig tased Michaels after arresting and handcuffing him, and continued to tase him after Michaels had ceased to resist arrest. Under these circumstances, the right at issue is an arrestee’s right to be free from the gratuitous use of force when the arrestee has been handcuffed, is not a safety or flight risk, and is not resisting arrest. As discussed under the prong one analysis above, a jury could find that Officer Grassnig’s conduct violated this particular right. He is nonetheless entitled to qualified immunity if this particular right is not ‘clearly established.’ The Sixth Circuit has repeatedly held that “the right of people who pose no safety risk to the police to be free from gratuitous violence during arrest” is clearly established. See, e.g., Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 688 (6th Cir.2006). In fact, the Sixth Circuit has applied this rule in several cases involving claims that a police officer used excessive force in pepper spraying or tas-ing a suspect. See, e.g., Roberts, 240 Fed.Appx. at 677-78; Bultema, 146 Fed.Appx. at 37; Champion, 380 F.3d at 903; see also Landis, 515 F.Supp.2d at 814-15 (analogizing pepper spray with tasers for qualified immunity purposes). These cases establish that the use of a taser or chemical spray, although nonlethal, may be excessive if it is gratuitous. As discussed above in connection with prong one, construing the facts in the light most favorable to the Plaintiffs, a reasonable jury could conclude that Officer Grassnig tased Michaels gratuitously and unreasonably. Therefore, based on the well-established line of authority prohibiting" }, { "docid": "14552375", "title": "", "text": "L.Ed.2d 725 (2005); Greene v. Barber, 310 F.3d 889, 898 (6th Cir.2002); Vaughn v. City of Lebanon, 18 Fed.Appx. 252, 265 (6th Cir.2001); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994); Landis v. Cardoza, 515 F.Supp.2d 809, 814-15 (E.D.Mich.2007)(analogizing pepper spray with tasers for qualified immunity purposes); Goebel v. Taser Int’l Inc., No. 5:07CV0027, 2007 WL 2713053, at *6 (N.D.Ohio Sept. 14, 2007). For example, in Roberts, the Sixth Circuit held that a reasonable jury could find that the police officer’s repeated use of a taser on a subdued suspect was objectively unreasonable. Roberts, 240 Fed.Appx. at 678. The Court specifically noted that the weapon the officers use — whether it is pepper spray or a taser — is not critical to the objective reasonableness inquiry. Id. at n. 4. “The type of weapon used is not the issue; the excessiveness of the force is the Fourth Amendment inquiry.” Id. The Graham factors — severity of the crime at issue, safety threat, and resistance — will prove useful in addressing the objective reasonableness inquiry here. First, the crimes for which Michaels was arrested — resisting arrest, disorderly conduct, and criminal mischief — are not particularly severe. Second, the evidence does not establish that Michaels posed a significant threat to the Officers, and there is no evidence that he posed a threat to anyone else. Although Officer Grassnig’s police report indicates that “in his effort to resist [Mi-chaels] turned, put his head down, and came at me,” at that time Michaels was in handcuffs and Officer Reinheimer was present to assist Officer Grassnig. (Doc. 24-2.) In addition, this exchange occurred before Officer Grassnig tased Michaels for the first time. Chronology is important here, because the Plaintiffs’ excessive force claim relates specifically to whether Officer Grassnig used the taser gratuitously. (Doc. 1 at ¶ 18.) In the excessive force context, segmenting the incident at issue is appropriate in order to isolate the particular use of force that is allegedly excessive. See Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.1996); see also, e.g., Russo v. City of Cincinnati, 953 F.2d 1036," }, { "docid": "10762165", "title": "", "text": "is a clearly established Fourth Amendment right.” Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir.2001). A claim of excessive force turns on whether the officer’s actions were “objectively reasonable” in light of the totality of the circumstances. Id. The trial court must perform a “careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). Among other factors, this balancing “requires careful attention to the facts and circumstances of each particular case, including [ (1) ] the severity of the crime at issue, [ (2) ] whether the suspect poses an immediate threat to the safety of the officers or others, and [ (3) ] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.; Lustig v. Mondeau, 211 Fed.Appx. 364, 369-70 (6th Cir.2006). Gradisher’s appeal concerning the officers’ use of excessive force focuses exclusively on Craft’s use of the taser on Gradisher. Because each officer’s liability must be individually assessed in a Section 1983 action, see Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 541-42 (6th Cir.2008), we affirm with little difficulty the district court’s grant of summary judgment to Officers Hackathorn, Smith, and Leadbetter on this cause of action. Turning to Craft’s use of the taser on Gradisher, we have held that “[i]f a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him.” Hagans, 695 F.3d at 509. “By contrast, when we have found excessive force, the suspects were compliant or had stopped resisting.” Id. In determining whether officers used excessive force, courts have placed great weight on officers’ failure to warn a suspect before deploying a taser. Cockrell v. City of Cincinnati, 468 Fed.Appx. 491, 498 (6th Cir.2012) (Cole, J., concurring). The parties dispute whether or not Gradisher was resisting or refusing to be handcuffed. The officers claim that Grad-isher repeatedly pulled his arms back when they attempted" }, { "docid": "14552374", "title": "", "text": "find that Officer Grassnig’s conduct rose to the level of a constitutional violation. The governmental interest in using reasonable force to accomplish an arrest is clear and strong. However, it is also well-established that “the gratuitous use of force on a suspect who has already been subdued and placed in handcuffs is unconstitutional.” See e.g., Bultema v. Benzie County, 146 Fed.Appx. 28, 35 (6th Cir.2005) (citing McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir.1988)); Roberts v. Manigold, 240 Fed.Appx. 675, 677-78 (6th Cir.2007) (citing Bultema); Griffith v. Coburn, 473 F.3d 650, 658 (6th Cir.2007); St. John, 411 F.3d at 774-75; United States v. Sanders, 719 F.2d 882, 887 (6th Cir.1983). Moreover, a line of Sixth Circuit cases holds that the use of non-lethal, temporarily incapacitating force on a handcuffed suspect who no longer poses a safety threat, flight risk, and/or is not resisting arrest constitutes excessive force. See Bultema, 146 Fed.Appx. at 35 (citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004)), cert. denied, 544 U.S. 975, 125 S.Ct. 1837, 161 L.Ed.2d 725 (2005); Greene v. Barber, 310 F.3d 889, 898 (6th Cir.2002); Vaughn v. City of Lebanon, 18 Fed.Appx. 252, 265 (6th Cir.2001); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994); Landis v. Cardoza, 515 F.Supp.2d 809, 814-15 (E.D.Mich.2007)(analogizing pepper spray with tasers for qualified immunity purposes); Goebel v. Taser Int’l Inc., No. 5:07CV0027, 2007 WL 2713053, at *6 (N.D.Ohio Sept. 14, 2007). For example, in Roberts, the Sixth Circuit held that a reasonable jury could find that the police officer’s repeated use of a taser on a subdued suspect was objectively unreasonable. Roberts, 240 Fed.Appx. at 678. The Court specifically noted that the weapon the officers use — whether it is pepper spray or a taser — is not critical to the objective reasonableness inquiry. Id. at n. 4. “The type of weapon used is not the issue; the excessiveness of the force is the Fourth Amendment inquiry.” Id. The Graham factors — severity of the crime at issue, safety threat, and resistance — will prove useful in addressing the objective reasonableness inquiry" }, { "docid": "10762166", "title": "", "text": "taser on Gradisher. Because each officer’s liability must be individually assessed in a Section 1983 action, see Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 541-42 (6th Cir.2008), we affirm with little difficulty the district court’s grant of summary judgment to Officers Hackathorn, Smith, and Leadbetter on this cause of action. Turning to Craft’s use of the taser on Gradisher, we have held that “[i]f a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him.” Hagans, 695 F.3d at 509. “By contrast, when we have found excessive force, the suspects were compliant or had stopped resisting.” Id. In determining whether officers used excessive force, courts have placed great weight on officers’ failure to warn a suspect before deploying a taser. Cockrell v. City of Cincinnati, 468 Fed.Appx. 491, 498 (6th Cir.2012) (Cole, J., concurring). The parties dispute whether or not Gradisher was resisting or refusing to be handcuffed. The officers claim that Grad-isher repeatedly pulled his arms back when they attempted to handcuff him. They assert that Gradisher kept reaching his hands towards his waistband, possibly for a weapon, and would not comply with their commands to give up his arms both before and during the tasing. Gradisher, conversely, says that when the officers pulled the sheet off of him, he held his hands up and his legs out, and said “You got me, You got me,” yet they deployed the taser “[a]t that time.” He also claims that the officers gave no warning before immediately tasing him, and they continued to tase him even though he could not follow orders since he was incapacitated by the tasing. Thus, whether Gradisher resisted or not and whether he was given an opportunity to comply with commands before, and while, being tased are material facts in dispute. “Where, as here, the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability.” Sova, 142 F.3d at 903. Accordingly, we reverse the district court’s grant of summary judgment" }, { "docid": "11531407", "title": "", "text": "ground and surrounded by officers, did not pose a risk of getting away. And as to “the severity of the crime at issue,” id., Ratcliff knew only that someone had reported a disturbance and had no idea what, if any, crime Hagans had committed. Yet these factors must be assessed together with, not apart from, the reality that Hagans was out of control and continued forcefully to resist arrest. As the district court recognized, the combination of factors presented Officer Ratcliff with a “close call,” R. 63 at 14, as some factors cut in favor of using the taser while other factors cut against it. The essence of qualified immunity, however, is to give government officials cover when they resolve close calls in reasonable (even if ultimately incorrect) ways. See al-Kidd, 131 S.Ct. at 2085. The fact remains that, prior to May 2007 (and for several years after), no case in any circuit held that officers used excessive force by tasing suspects who were actively resisting arrest, even though many of them, like Hagans, were suspected of innocuous crimes, posed little risk of escape and had not yet physically harmed anybody. That the taser shocks might have contributed to Hagans’ death does not change things. Although the autopsy report concluded that Hagans died from cocaine intoxication, Hagans’ expert opined that the taser shocks were “a substantial factor in causing his death.” R. 52-5 at 3. Even if we credit Hagans’ causation evidence, as we must on summary judgment, that does not override his standard-of-care problem. “In determining whether there has been a violation of the Fourth Amendment, we consider not the extent of the injury inflicted but whether an officer subjects a detainee to gratuitous violence.” Miller v. Sanilac Cnty., 606 F.3d 240, 252 (6th Cir.2010) (citation and internal quotation marks omitted). For the reasons just given, Officer Ratcliff did not violate clearly established law when he tried — unsuccessfully, it turns out — to subdue Hagans with the taser. Tragic though Hagans’ death assuredly is, that regrettable fact cannot transform the state of the law in May 2007, and" } ]

[ { "docid": "13175880", "title": "", "text": "S.Ct. at 3384. C. Contingent Fee Agreement Janis’s next contention is that the arrangement between the F.B.I. and Horse was an impermissible fee arrangement. Janis relies on the Fifth Circuit decision in United States v. Cervantes-Pacheco, 793 F.2d 689, 690 (5th Cir.1986), which held that an impermissible contingent fee arrangement violates the Fifth Amendment right to due process. This court has recently held that an arrangement under which a fee was contingent upon a suspect’s conviction would not alone require reversal. United States v. Risken, 788 F.2d at 1373. Nevertheless, it is apparent from the record that the compensation paid to Horse was not contingent upon his performance in any way. Both Horse and Agent Graff testified that Horse’s compensation was not based upon his ability to successfully make narcotics purchases. Further, Horse’s compensation could not have been contingent upon his testimony because he received payment prior to the indictment of Janis. The testimony of Agent Graff indicates that the $2,000 payment was made to Horse in order to enable him to relocate from the Pine Ridge Indian Reservation. We note that the primary evil concerning contingent fee arrangements is that “they might tend to cause informers to induce unpredisposed persons to commit crimes.” United States v. Yater, 756 F.2d 1058, 1067 (5th Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). In addition there is a risk of perjury by the informant. United States v. Cresta, 825 F.2d at 546-47. These concerns, however, are not present in the instant case. Horse was fitted with a body recorder which taped the entire transaction, this tape was admitted into evidence and corroborated his oral testimony. The concerns over fabricated testimony and improper inducements made by a government informant are thus not present in the instant case. United States v. King, 803 F.2d 387, 391 n. 3 (8th Cir.1986) (“When, as here, the informant’s evidence was witnessed and recorded, less scrutiny is necessary, since the evidence obtained does not rest on the informant’s evidence alone.”). As noted in King, 803 F.2d at 391, “[i]t is not the contingent" } ]

[ { "docid": "16879616", "title": "", "text": "Duke headed a conspiracy to distribute drugs in the Twin Cities. Duke maintained several houses in Minneapolis and St. Paul, many of them providing housing for those who worked for him, as well as a house in Los Angeles, where he purchased much of the cocaine he distributed in Minnesota. Duke’s normal methods involved purchasing cocaine directly from a Columbian source, receiving it in either Texas or Los Angeles, and then transporting it by car to Minnesota. Once in Minnesota, the cars were often unloaded at Duke’s country estate in Delano, just west of Minneapolis. From there, the co caine would be distributed to other members of the conspiracy who would sell it on the streets of the Twin Cities. The operation was huge. Ralph Lamont Nunn (Monte Nunn), Duke’s son, told the government’s undercover informant, Andrew Chambers, that his father controlled much of the drug trade in the Twin Cities and could easily sell seventy-five kilograms in two or three months. Trial Transcript vol. 2, at 146; Exhibit 2A. Marvin McCa-leb, a Los Angeles drug dealer with whom Duke conspired to sell cocaine from approximately June through December 1988, testified that during that period he and Duke sold twenty-five kilograms a week and made a profit of between $600,000 to $1,000,000 each. Trial Transcript vol. 7, at 194; see id. vol. 4, at 109. To distribute this much cocaine, Duke relied on a host of people, including his son, Monte Nunn; Loren Duke, Duke's nephew, who drove cars cross-country and who often took cash to local car dealers for laundering; and Joseph Ballard, who lived in Duke’s Delano house and who made many cross-country trips. The arrests in this case followed a reverse sting operation involving Monte Nunn and Andrew Chambers. Chambers, who worked for the Drug Enforcement Administration, first met Monte Nunn in May 1989 after working for several months trying to infiltrate the area drug culture. Chambers told Monte that he was from Los Angeles, had drugs to sell in Minnesota, and sold only in large quantities. Monte assured Chambers that his father could distribute as much" }, { "docid": "16879625", "title": "", "text": "A: It was there.” Id. vol. 5, at 114. As indicated, Nunn also told Chambers that he had no money. Clearly, someone gave Nunn the money. Given Nunn's statements implicating Duke and the wealth of evidence proving Duke’s position at the head of the conspiracy, it seems a reasonable inference that Nunn made the purchase for his father with his father’s money. As this court has held, the evidence of Duke’s involvement in this transaction can be “viewed in the light of the evidence establishing [his] involvement in the conspiracy.” Ivey, 915 F.2d at 384. Cf. United States v. Robinson, 782 F.2d 128, 130 (8th Cir.1986) (evidence of other crimes relevant to “ ‘complete the story of the crime on trial by proving its immediate context’ ” (quoting Carter v. United States, 549 F.2d 77, 78 (8th Cir.1977))). We think that this evidence — that Nunn talked to his father twice while talking to Chambers, that Nunn told Chambers that his father was getting his money together and Loren Duke that the money came from his father, that the money suddenly appeared in Nunn’s hands, and that Duke was the dominant figure in the conspiracy — is sufficient to support Duke’s conviction on count 2. B. Firearm Convictions We also reject Duke’s argument that he was wrongly convicted of the three different counts alleging violations of 18 U.S.C. § 924(c)(1). In count 28, Duke was charged with using a .22 caliber pistol with a silencer attached during and in relation to either the continuing criminal enterprise or the conspiracy. The pistol was seized on May 18,1989, from a storage unit in Minneapolis. The other two guns, charged in counts 29 and 30, were an unloaded revolver found in a hollowed-out book in the master bedroom of the Delano house and a loaded semi-automatic weapon found in the master bedroom’s bathroom. Duke argues that there was no evidence of drug transactions at the Delano house from which the jury could find that the guns were used during and in relation to the conspiracy, and that he could not have used them" }, { "docid": "16879624", "title": "", "text": "was going to get the stuff was because his dad wanted it.” Id. at 142. And on cross-examination, Loren was asked why he and Nunn counted the money before going to the Hilton: “Q: Now you are not trying to tell this jury that Mont[e] was counting money that you claim he got from his father, are you? A: That’s what I heard.” Id. vol. 5, at 99. He repeated that Nunn had told him that. Id. The sudden appearance of $120,000 on the night of May 17 also suggests that it came from Duke and was not Nunn’s own money. According to Chambers, Nunn told him around 6:00 p.m. that “he was getting the money together, and that he would have it together; and as soon as he got it, he would call me.” Id. vol. 3, at 13. Nunn was with Loren Duke at Loren’s house from then until 10:00, when he left for about twenty minutes. He came back with $120,000. “Q: ... Just, all of a sudden, the money was there? A: It was there.” Id. vol. 5, at 114. As indicated, Nunn also told Chambers that he had no money. Clearly, someone gave Nunn the money. Given Nunn's statements implicating Duke and the wealth of evidence proving Duke’s position at the head of the conspiracy, it seems a reasonable inference that Nunn made the purchase for his father with his father’s money. As this court has held, the evidence of Duke’s involvement in this transaction can be “viewed in the light of the evidence establishing [his] involvement in the conspiracy.” Ivey, 915 F.2d at 384. Cf. United States v. Robinson, 782 F.2d 128, 130 (8th Cir.1986) (evidence of other crimes relevant to “ ‘complete the story of the crime on trial by proving its immediate context’ ” (quoting Carter v. United States, 549 F.2d 77, 78 (8th Cir.1977))). We think that this evidence — that Nunn talked to his father twice while talking to Chambers, that Nunn told Chambers that his father was getting his money together and Loren Duke that the money came from" }, { "docid": "16879618", "title": "", "text": "cocaine as he could sell. The two exchanged phone numbers. They met again several days later, on May 10, 1989, at a gas station. There, Monte got into Chambers’s car, which had been equipped with a tape recorder, and the two drove around and talked for almost two hours. Their recorded conversation, during which they discussed the sale of twenty kilograms at about $14,000 per kilo, was played to the jury, see exhibits 2A and 2B, as were portions of several other conversations recorded between May 10 and May 17, the date of the twenty-kilogram transaction. They met again on May 16, and their conversation was again recorded. See exhibit 3. On May 17, Chambers called Nunn and they arranged to meet at a ear wash in the afternoon. From there, they went to a Hilton hotel, where Chambers showed Monte twenty kilograms in the trunk of his car. Nunn picked out three packages and they went inside to a room wired for audio and video surveillance, where Nunn cut and tested the cocaine. Their conversation after they left the hotel was again recorded and played to the jury. See exhibit 49. Chambers and Nunn agreed that Nunn would call Chambers later that day when he had collected the money. Loren Duke testified that he met Nunn that afternoon at a motorcycle shop and that they went to Loren’s house, where Nunn received a call from Chambers at about 6:00 p.m. Nunn told Chambers he was getting the money together and would call him. At about 10:00 p.m., Nunn left to make a call from a pay-phone; he came back twenty minutes later with almost $120,000 in cash. Nunn and Loren counted the money, called Chambers, and then left with two others for the Hilton. There they presented Chambers with $117,754 in a shoe box wrapped in a green bag, and were promptly arrested. The police arrested Ralph Duke later that day and executed search warrants at four houses, including the Delano house, on May 18, 1989. II. DISCUSSION A. Twenty-kilogram Transaction We begin with Duke’s argument that “the State" }, { "docid": "16879622", "title": "", "text": "about the government’s proof of one of the offense’s essential elements.” Id. While it is a close question, given only the circumstantial evidence indicating that Nunn purchased the cocaine for Duke with Duke’s money, we cannot say that a reasonable fact-finder must have had a doubt that Duke participated in and encouraged this transaction. The jury heard several recorded conversations in which Nunn, although equivocally, implicated his father in the transaction. In their first recorded conversation, on May 10, 1989, Chambers asked Nunn what his father thought about the proposed deal: [Chambers]: Ah, how your father feel about us hookin up? Mont[e]: He’s fine. [Chambers]: Okay. Mont[e]: He don’t mind he’s cool with it. He might wanna get some, you know. Court 2A at 27. On May 16, Chambers asked Nunn whether he could buy all twenty kilograms. Nunn eventually replied that his problem was a lack of money: “See the problem I have I don’t have any money here. See the money I did have was in my crib, you know.... I got some money but it ain’t here. It’s in a different state. I don’t feel like touchin it, you know.” Court 3 at 4. Finally, as they left the Hilton on May 17 after Nunn tested the cocaine, Chambers suggested that he could sell to Nunn and Nunn could resell to his father at a higher price: [Chambers]: And you think he’ll hop on em. Mont[e]: He’ll hop on em. [Chambers]: Shit man, tell him! Mont[e]: I am, I told him, he’s gettin his money together. Court 49 at 2. Moreover, Loren Duke testified that Monte Nunn told him that the money came from Duke. When Loren ran into Nunn on May 17, Nunn told Loren that someone was in town with twenty kilos and “that his father told him to go get the twenty kilos because he wanted to buy them.” Trial Transcript vol. 4, at 140. When Nunn then went to Loren’s house, Loren said that Nunn “told me that he didn’t have no money to get the stuff — the only reason why we" }, { "docid": "21100957", "title": "", "text": "980, 122 S.Ct. 1459, 152 L.Ed.2d 398 (2002); cf. Webster, 84 F.3d at 1065 (finding court did not abuse its discretion in admitting videotape where lens was partially obscured and did not cover all of the actions of those being recorded and the audio was partially unclear because the “infirmities are not so pervasive as to render the tape as a whole untrustworthy”). The “gaps” themselves, whether or not Russell testified at the trial, are not enough to render the recordings inadmissible and instead go to the weight a jury should assign the recordings. Oslund also argues that the seventh element of McMillan was not met for two reasons: (1) that he was induced to speak to Russell and (2) that Russell was induced to cooperate with the government and to orchestrate the conversations because he wanted to collect part of the $115,000 reward money offered in this case. According to Oslund, this potential for a financial reward induced Russell to manipulate the conversations in order to get certain statements from Oslund. Oslund argues that because Agent Walden was not simultaneously monitoring the conversations as they occurred, and because Agent Walden cannot speak as to Russell’s state of mind, that only Russell’s testimony would satisfy this McMillan factor. We respectfully disagree. In United States v. Browriheld that the seventh factor in McMillan referred to the statements of the defendant in a recorded conversation, and as such, the defendant’s statement must be made in good faith, without inducement, and voluntarily. 604 F.2d 557, 560 (8th Cir.1979). We are presented with no evidence that Oslund did not voluntarily enter into these conversations with Russell or that he was somehow induced to do so, and as such, this argument fails. Id.; see also United States v. Risken, 788 F.2d 1361, 1370 (8th Cir.) (no inducement when defendant voluntarily enters into conversation with informant), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986). Oslund alleges that Russell was induced into participating in the conversations and in choosing particular topics of discussion. This argument attacks the voluntariness of Russell’s consent to participating" }, { "docid": "22884751", "title": "", "text": "recording of contacts between witness and defendant presented definitive corroboration); see also United States v. Risken, 788 F.2d 1361, 1375 (8th Cir.) (failure to disclose under Brady an understanding between FBI and witness about post-trial payment was not sufficient to undermine confidence in the jury’s verdict where witness testimony was strongly corroborated by tape recordings), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986); accord United States v. Janis, 831 F.2d 773, 776 (8th Cir.1987), cert. denied, 484 U.S. 1073, 108 S.Ct. 1046, 98 L.Ed.2d 1009 (1988). In an audio tape played for the jury, Nunn told Chambers that his father controlled all of the dope business in the Twin Cities, that his father distributed 75 kilograms of cocaine every month or two, that his father felt fine about the deal between Nunn and Chambers, and that his father might want to get some of the cocaine. Furthermore, two of the most damaging exhibits — the videotapes of Chambers’ meetings with Nunn in the parking lot of a hotel and in a hotel room — were introduced through the testimony of Agent Bushman before Chambers testified. In these tapes, Nunn stated, among other things, that his father usually got his cocaine directly from Colombians. We also note that Duke’s trial counsel impeached Chambers’ credibility at trial with evidence that he had failed to file income tax returns for the previous six years and paid tax on none of the $100,000 he had been paid by the DEA for his undercover work on other cases. The defense was also able to suggest bias toward the prosecution because Chambers had been paid over $29,000 for his work in this and other Minnesota prosecutions. Further, the district court instructed the jury that “[t]he testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness.” Thus, the jury was well aware of the possibility that self-interest might have influenced Chambers’ testimony." }, { "docid": "16879623", "title": "", "text": "money but it ain’t here. It’s in a different state. I don’t feel like touchin it, you know.” Court 3 at 4. Finally, as they left the Hilton on May 17 after Nunn tested the cocaine, Chambers suggested that he could sell to Nunn and Nunn could resell to his father at a higher price: [Chambers]: And you think he’ll hop on em. Mont[e]: He’ll hop on em. [Chambers]: Shit man, tell him! Mont[e]: I am, I told him, he’s gettin his money together. Court 49 at 2. Moreover, Loren Duke testified that Monte Nunn told him that the money came from Duke. When Loren ran into Nunn on May 17, Nunn told Loren that someone was in town with twenty kilos and “that his father told him to go get the twenty kilos because he wanted to buy them.” Trial Transcript vol. 4, at 140. When Nunn then went to Loren’s house, Loren said that Nunn “told me that he didn’t have no money to get the stuff — the only reason why we was going to get the stuff was because his dad wanted it.” Id. at 142. And on cross-examination, Loren was asked why he and Nunn counted the money before going to the Hilton: “Q: Now you are not trying to tell this jury that Mont[e] was counting money that you claim he got from his father, are you? A: That’s what I heard.” Id. vol. 5, at 99. He repeated that Nunn had told him that. Id. The sudden appearance of $120,000 on the night of May 17 also suggests that it came from Duke and was not Nunn’s own money. According to Chambers, Nunn told him around 6:00 p.m. that “he was getting the money together, and that he would have it together; and as soon as he got it, he would call me.” Id. vol. 3, at 13. Nunn was with Loren Duke at Loren’s house from then until 10:00, when he left for about twenty minutes. He came back with $120,000. “Q: ... Just, all of a sudden, the money was there?" }, { "docid": "16879621", "title": "", "text": "more than Duke’s mere association with Chambers and Nunn or his mere knowledge of their transaction. See United States v. Grey Bear, 828 F.2d 1286, 1292-93 (8th Cir.1987), vacated in part, 836 F.2d 1088 (8th Cir.1987). Rather, the government must prove: “(1) that the defendant associated himself with the unlawful venture; (2) that he participated in it as something he wished to bring about; and (3) that he sought by his actions to make it succeed.” United States v. Lanier, 838 F.2d 281, 284 (8th Cir.1988) (citing United States v. Sopczak, 742 F.2d 1119, 1121-22 (8th Cir.1984)). The government must prove some “affirmative participation which at least encourages the perpetrator.” United States v. Ivey, 915 F.2d 380, 384 (8th Cir.1990). Duke alleges that the evidence was insufficient to prove any such active, affirmative participation. When reviewing his argument, “we examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences.” Id. at 383. We can reverse only if “a reasonable fact-finder must have entertained a reasonable doubt about the government’s proof of one of the offense’s essential elements.” Id. While it is a close question, given only the circumstantial evidence indicating that Nunn purchased the cocaine for Duke with Duke’s money, we cannot say that a reasonable fact-finder must have had a doubt that Duke participated in and encouraged this transaction. The jury heard several recorded conversations in which Nunn, although equivocally, implicated his father in the transaction. In their first recorded conversation, on May 10, 1989, Chambers asked Nunn what his father thought about the proposed deal: [Chambers]: Ah, how your father feel about us hookin up? Mont[e]: He’s fine. [Chambers]: Okay. Mont[e]: He don’t mind he’s cool with it. He might wanna get some, you know. Court 2A at 27. On May 16, Chambers asked Nunn whether he could buy all twenty kilograms. Nunn eventually replied that his problem was a lack of money: “See the problem I have I don’t have any money here. See the money I did have was in my crib, you know.... I got some" }, { "docid": "22884750", "title": "", "text": "son, Ralph Nunn (Nunn), told him that the money for the twenty kilos came from his father. On May 17, 1989, Nunn told Loren that someone (Chambers) was in town with twenty kilos and “that his father told him to go get the twenty kilos because he wanted to buy them.” Later, when Nunn went to Loren’s house, Loren said that Nunn “told [him] that he didn’t have no [sic] money to get the stuff — the only reason why he was going to get the stuff was because his dad wanted it.” Nunn also told Loren Duke that it was his father’s money they were counting at Loren’s house just before they returned to the hotel to buy the twenty kilograms of cocaine. See United States v. Duke, 940 F.2d at 1117-18. Additionally, we find it significant that much of Chambers’ testimony was corroborated by audio and video surveillance. See Endicott, 869 F.2d at 456 (no reasonable likelihood false testimony as to witness payments would have affected the judgment of the jury where tape recording of contacts between witness and defendant presented definitive corroboration); see also United States v. Risken, 788 F.2d 1361, 1375 (8th Cir.) (failure to disclose under Brady an understanding between FBI and witness about post-trial payment was not sufficient to undermine confidence in the jury’s verdict where witness testimony was strongly corroborated by tape recordings), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986); accord United States v. Janis, 831 F.2d 773, 776 (8th Cir.1987), cert. denied, 484 U.S. 1073, 108 S.Ct. 1046, 98 L.Ed.2d 1009 (1988). In an audio tape played for the jury, Nunn told Chambers that his father controlled all of the dope business in the Twin Cities, that his father distributed 75 kilograms of cocaine every month or two, that his father felt fine about the deal between Nunn and Chambers, and that his father might want to get some of the cocaine. Furthermore, two of the most damaging exhibits — the videotapes of Chambers’ meetings with Nunn in the parking lot of a hotel and in a" }, { "docid": "9681055", "title": "", "text": "M. Hogan Co., 769 F.2d 1293, 1299 (8th Cir.1985); see also United States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir. 1985), cert. denied, — U.S.-, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986); Lindsey v. King, 769 F.2d 1034, 1041-43 (5th Cir. 1985); United States v. McKenzie, 768 F.2d 602, 610 (5th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986); United States ex rel. Smith v. Fairman, 769 F.2d 386, 391-92 (7th Cir. 1985). The government should have disclosed the implied understanding that existed between Greenfield and the FBI about the possibility of a post-trial payment. The defense could have used this information to further impeach Greenfield’s credibility. Nonetheless, Greenfield’s status as a paid government witness and his employment by the FBI as a paid informant had already been brought out before the jury, although the payments which had been disclosed to the defense and to the jury were substantially less than the post-trial payment. More importantly, however, the government’s case did not depend upon Greenfield’s testimony alone. Cf. United States v. Bagley, 105 S.Ct. at 3386-88 (Marshall, J., dissenting) (government’s entire case hinged on testimony of two private security guards who aided government agency in its investigation of defendant; omission of evidence of witnesses’ possible bias cannot be held harmless error); United States v. Pflaumer, 774 F.2d at 1230. Greenfield’s testimony was strongly corroborated by the tape recordings of his conversations with appellant. We agree with the district court that the tape recordings constituted the critical incriminating evidence against appellant. At 1366. Under these circumstances, we cannot say that the govemment’s failure to disclose the implied understanding between the FBI and Greenfield about the possibility of a post-trial payment is sufficient to undermine our confidence in the jury’s verdict. Our holding that the evidence not disclosed by the government in the present was not material under the United States v. Bagley standard should not be construed as approval of the government’s conduct. The fact remains that the government’s failure to disclose known evidence favorable to the accused is incompatible with Brady v. Maryland, even though" }, { "docid": "16879615", "title": "", "text": "with intent to distribute cocaine in violation of 21 U.S.C. § 846 (count 32). Duke received separate life sentences on counts 1, 2, and 32, and forty-year sentences on each of counts 4-8. These sentences were all concurrent. In addition, Duke was sentenced to mandatory consecutive sentences of thirty years, five years, and five years, respectively, on counts 28, 29, and 30. On appeal, Duke argues that his- convictions for both continuing criminal enterprise and conspiracy violate the double jeopardy clause of the fifth amendment; that the evidence was insufficient to convict him of the twenty-kilogram transaction; that the evidence does not support the firearm convictions; and that he received ineffective assistance of counsel at trial. Because we agree that the convictions for both continuing criminal enterprise and conspiracy violate his fifth amendment rights, we remand this case to the district court to vacate one of the convictions. In all other respects, we affirm. I. BACKGROUND ' The evidence presented at the trial of Duke and five others involved in his drug dealings established that Duke headed a conspiracy to distribute drugs in the Twin Cities. Duke maintained several houses in Minneapolis and St. Paul, many of them providing housing for those who worked for him, as well as a house in Los Angeles, where he purchased much of the cocaine he distributed in Minnesota. Duke’s normal methods involved purchasing cocaine directly from a Columbian source, receiving it in either Texas or Los Angeles, and then transporting it by car to Minnesota. Once in Minnesota, the cars were often unloaded at Duke’s country estate in Delano, just west of Minneapolis. From there, the co caine would be distributed to other members of the conspiracy who would sell it on the streets of the Twin Cities. The operation was huge. Ralph Lamont Nunn (Monte Nunn), Duke’s son, told the government’s undercover informant, Andrew Chambers, that his father controlled much of the drug trade in the Twin Cities and could easily sell seventy-five kilograms in two or three months. Trial Transcript vol. 2, at 146; Exhibit 2A. Marvin McCa-leb, a Los Angeles" }, { "docid": "22884753", "title": "", "text": "Under these circumstances, we hold that there is no reasonable likelihood that Chambers’ false testimony affected the judgment of the jury. In other words, the failure to disclose the fact that Chambers gave false testimony about his arrest record was harmless beyond a reasonable doubt. See United States v. Quintanilla, 25 F.3d 694, 698 (8th Cir.) (holding, in the context of an alleged Brady violation, that the undisclosed evidence of a witness’s criminal record was cumulative and would not have significantly enhanced the defendants’ cross-examination), cert. denied, — U.S. —, 115 S.Ct. 457, 130 L.Ed.2d 365 (1994); Janis, 831 F.2d at 776 (holding that government’s failure to disclose the criminal record of informant did not violate due process where defendant was able to impeach informant); see also United States v. Abello-Silva, 948 F.2d 1168, 1181 (10th Cir.1991), cert. denied, — U.S. —, 113 S.Ct. 107, 121 L.Ed.2d 65 (1992). III. CONCLUSION Having carefully reviewed the record, we conclude that the district court did not err in denying post-conviction relief based on the newly discovered evidence of Chambers’ arrest record because it is not reasonably likely that the informant’s false testimony would have affected the judgment of the jury in the present case. For the reasons discussed above, the judgment of the district court is affirmed. . The Honorable David S. Doty, United States District Judge for the District of Minnesota. . Rule 6(a) of the Federal Rules of Civil Procedure provides in relevant part: “When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . This is unfortunately not the first case we have seen where the government has failed to successfully complete a routine background check. Such carelessness is unacceptable, particularly in light of the technological advances which make record retrieval readily accessible. We strongly condemn the government's haphazard approach to its own trial preparation and to its duty to serve and facilitate the truth-finding function of the courts. See" }, { "docid": "16879619", "title": "", "text": "conversation after they left the hotel was again recorded and played to the jury. See exhibit 49. Chambers and Nunn agreed that Nunn would call Chambers later that day when he had collected the money. Loren Duke testified that he met Nunn that afternoon at a motorcycle shop and that they went to Loren’s house, where Nunn received a call from Chambers at about 6:00 p.m. Nunn told Chambers he was getting the money together and would call him. At about 10:00 p.m., Nunn left to make a call from a pay-phone; he came back twenty minutes later with almost $120,000 in cash. Nunn and Loren counted the money, called Chambers, and then left with two others for the Hilton. There they presented Chambers with $117,754 in a shoe box wrapped in a green bag, and were promptly arrested. The police arrested Ralph Duke later that day and executed search warrants at four houses, including the Delano house, on May 18, 1989. II. DISCUSSION A. Twenty-kilogram Transaction We begin with Duke’s argument that “the State has failed to provide any evidence to show that Ralph Duke was involved in aiding and abetting anyone to possess 20 kilograms of cocaine on May 17, 1989.” Brief for Appellant at 21. Duke argues that there is simply no evidence connecting him to the transaction arranged between Nunn and Chambers. For instance, Duke points out that, while Nunn spoke to Duke on two occasions while he was meeting with Chambers, Chambers himself never spoke to Duke, nor could Chambers say that Nunn and Duke dis cussed the twenty-kilogram transaction. “I never seen him talk to his father about what we were talking about.” Trial Transcript vol. 3, at 129. Duke also points out that there was no physical evidence connecting Duke to the money used to make the purchase. His fingerprints were not found on the money or the containers. In short, Duke argues, nothing establishes any connection between him and the transaction. To sustain Duke’s conviction for aiding and abetting the attempt to possess with intent to distribute cocaine, the government must prove" }, { "docid": "16879617", "title": "", "text": "drug dealer with whom Duke conspired to sell cocaine from approximately June through December 1988, testified that during that period he and Duke sold twenty-five kilograms a week and made a profit of between $600,000 to $1,000,000 each. Trial Transcript vol. 7, at 194; see id. vol. 4, at 109. To distribute this much cocaine, Duke relied on a host of people, including his son, Monte Nunn; Loren Duke, Duke's nephew, who drove cars cross-country and who often took cash to local car dealers for laundering; and Joseph Ballard, who lived in Duke’s Delano house and who made many cross-country trips. The arrests in this case followed a reverse sting operation involving Monte Nunn and Andrew Chambers. Chambers, who worked for the Drug Enforcement Administration, first met Monte Nunn in May 1989 after working for several months trying to infiltrate the area drug culture. Chambers told Monte that he was from Los Angeles, had drugs to sell in Minnesota, and sold only in large quantities. Monte assured Chambers that his father could distribute as much cocaine as he could sell. The two exchanged phone numbers. They met again several days later, on May 10, 1989, at a gas station. There, Monte got into Chambers’s car, which had been equipped with a tape recorder, and the two drove around and talked for almost two hours. Their recorded conversation, during which they discussed the sale of twenty kilograms at about $14,000 per kilo, was played to the jury, see exhibits 2A and 2B, as were portions of several other conversations recorded between May 10 and May 17, the date of the twenty-kilogram transaction. They met again on May 16, and their conversation was again recorded. See exhibit 3. On May 17, Chambers called Nunn and they arranged to meet at a ear wash in the afternoon. From there, they went to a Hilton hotel, where Chambers showed Monte twenty kilograms in the trunk of his car. Nunn picked out three packages and they went inside to a room wired for audio and video surveillance, where Nunn cut and tested the cocaine. Their" }, { "docid": "9526996", "title": "", "text": "v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.); Id., 473 U.S. at 685, 105 S.Ct. at 3385 (opinion of White, J.); Pennsylvania v. Ritchie, 480 U.S. 39, 56-59, 107 S.Ct. 989, 1001-02, 94 L.Ed.2d 40 (1987) (majority opinion). Applying this test, the magistrate concluded that the outcome of Weintraub’s trial would not have been different if the government had properly given Weintraub the impeachment material before trial. We agree. Weintraub contends that Emrick’s testimony was crucial to his conviction, to the extent that the previously undisclosed evidence casting doubt on Emrick’s credibility would necessarily east doubt on Weintraub’s entire conviction. When evaluating this claim, we must consider the nature of the impeachment evidence improperly withheld and the additional evidence of the defendant’s guilt independent of the disputed testimony. Courts have found, for example, that impeachment evidence improperly withheld was not material where the testimony of the witness who might have been impeached was strongly corroborated by additional evidence supporting a guilty verdict. United States v. Risken, 788 F.2d 1361, 1375 (8th Cir.), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986). In contrast, where the withheld evidence would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material. See McDowell v. Dixon, 858 F.2d 945 (4th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1172, 103 L.Ed.2d 230 (1989) (Victim gave only direct evidence identifying the defendant, a black man, as her assailant, and the prosecution withheld the fact that she had originally stated that the culprit was white); Lindsey v. King, 769 F.2d at 1042 (Prosecution withheld original statement by an eyewitness that he did not see an assailant’s face and thus could not identify the culprit. At trial, the same eyewitness positively identified the defendant). In the present case, the record and transcript from Weintraub’s trial belie his claim that the withheld evidence was reasonably likely to change the outcome of his trial. Instead, the corroborating evidence of his guilt and the" }, { "docid": "17464747", "title": "", "text": "district court allowed the tape into evidence as an exception to the hearsay rule either as a present sense impression under Fed.R.Evid. 803(1) or as an excited utterance under 803(2). On appeal Cammisano first argues that the district court erred in admitting the taped conversation between his brother and his father into evidence under Rule 803(1) or (2). Cammisano asserts that either exception requires a showing that the statement was made contemporaneous with the event, and in this case the relevant event was the alleged beating which occurred three days prior to the conversation. He also emphasizes that the conversation was based on multiple hearsay because his brother had not discussed the event with Antoinette. We are inclined to agree that the tape was inadmissible under Rule 803(1) or (2). We, however, need not decide this issue, or address the government’s contention that the tape was admissible under other hearsay exceptions. The government introduced the tape to demonstrate Cammisano’s violent disposition. However, the jury acquitted him of witness tampering under 18 U.S.C. § 1512, which requires the use of physical force, threats or intimidation. See United States v. Risken, 788 F.2d 1361, 1368 (8th Cir.), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986). The jury only convicted Cammisano of obstruction of justice under 18 U.S.C. § 1503, which does not require the use of force, threats or intimidation. See id. Thus, any error in the admission of the tape did not prejudice Cammisano and was harmless. We further find that Cammisano’s challenges to two pretrial rulings and his assertions that the district court erred in admitting certain evidence, excluding certain evidence, limiting his cross-examination of Carey, and refusing two proffered jury instruction’s concerning Carey’s credibility are without merit. In addition, our review of the record convinces us that the district court’s conduct did not deprive Cammisano of a fair trial, as he asserts on appeal. Cammisano also challenges his sentence imposed under the Sentencing Guidelines. Under the Guidelines § 2J1.2, the base offense level for obstruction of justice was 12. Because Cammisano had no criminal history" }, { "docid": "22884752", "title": "", "text": "hotel room — were introduced through the testimony of Agent Bushman before Chambers testified. In these tapes, Nunn stated, among other things, that his father usually got his cocaine directly from Colombians. We also note that Duke’s trial counsel impeached Chambers’ credibility at trial with evidence that he had failed to file income tax returns for the previous six years and paid tax on none of the $100,000 he had been paid by the DEA for his undercover work on other cases. The defense was also able to suggest bias toward the prosecution because Chambers had been paid over $29,000 for his work in this and other Minnesota prosecutions. Further, the district court instructed the jury that “[t]he testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness.” Thus, the jury was well aware of the possibility that self-interest might have influenced Chambers’ testimony. Under these circumstances, we hold that there is no reasonable likelihood that Chambers’ false testimony affected the judgment of the jury. In other words, the failure to disclose the fact that Chambers gave false testimony about his arrest record was harmless beyond a reasonable doubt. See United States v. Quintanilla, 25 F.3d 694, 698 (8th Cir.) (holding, in the context of an alleged Brady violation, that the undisclosed evidence of a witness’s criminal record was cumulative and would not have significantly enhanced the defendants’ cross-examination), cert. denied, — U.S. —, 115 S.Ct. 457, 130 L.Ed.2d 365 (1994); Janis, 831 F.2d at 776 (holding that government’s failure to disclose the criminal record of informant did not violate due process where defendant was able to impeach informant); see also United States v. Abello-Silva, 948 F.2d 1168, 1181 (10th Cir.1991), cert. denied, — U.S. —, 113 S.Ct. 107, 121 L.Ed.2d 65 (1992). III. CONCLUSION Having carefully reviewed the record, we conclude that the district court did not err in denying post-conviction relief based on the newly discovered evidence" }, { "docid": "22884749", "title": "", "text": "it is the result of the prosecution’s misrepresentation of Chambers’ criminal record and the concomitant introduction of false testimony. If defense counsel should, in the government’s view, be able to rely solely on a prosecution background check of its own witness, the prosecution’s conduct will be reviewed under this relaxed standard where the prosecution’s inaccuracy not only misleads the defense but also results in the introduction of related false testimony by a prosecution witness. C. The Effect of Chambers’ False Testimony. It is important to recognize, as the government has correctly noted, that Chambers testified about events proving only one of eleven counts, Count Two for aiding and abetting the attempt to possess with intent to distribute 20 kilograms of cocaine. Chambers’ testimony with regard to the other counts was essentially collateral and cumulative. Focusing our analysis on the evidence submitted on Count Two, there was considerable evidence, apart from Chambers’ testimony, of Duke’s involvement in the effort to purchase the twenty kilograms of cocaine from Chambers. Duke’s nephew, Loren Duke (Loren), testified that Duke’s son, Ralph Nunn (Nunn), told him that the money for the twenty kilos came from his father. On May 17, 1989, Nunn told Loren that someone (Chambers) was in town with twenty kilos and “that his father told him to go get the twenty kilos because he wanted to buy them.” Later, when Nunn went to Loren’s house, Loren said that Nunn “told [him] that he didn’t have no [sic] money to get the stuff — the only reason why he was going to get the stuff was because his dad wanted it.” Nunn also told Loren Duke that it was his father’s money they were counting at Loren’s house just before they returned to the hotel to buy the twenty kilograms of cocaine. See United States v. Duke, 940 F.2d at 1117-18. Additionally, we find it significant that much of Chambers’ testimony was corroborated by audio and video surveillance. See Endicott, 869 F.2d at 456 (no reasonable likelihood false testimony as to witness payments would have affected the judgment of the jury where tape" }, { "docid": "16879620", "title": "", "text": "has failed to provide any evidence to show that Ralph Duke was involved in aiding and abetting anyone to possess 20 kilograms of cocaine on May 17, 1989.” Brief for Appellant at 21. Duke argues that there is simply no evidence connecting him to the transaction arranged between Nunn and Chambers. For instance, Duke points out that, while Nunn spoke to Duke on two occasions while he was meeting with Chambers, Chambers himself never spoke to Duke, nor could Chambers say that Nunn and Duke dis cussed the twenty-kilogram transaction. “I never seen him talk to his father about what we were talking about.” Trial Transcript vol. 3, at 129. Duke also points out that there was no physical evidence connecting Duke to the money used to make the purchase. His fingerprints were not found on the money or the containers. In short, Duke argues, nothing establishes any connection between him and the transaction. To sustain Duke’s conviction for aiding and abetting the attempt to possess with intent to distribute cocaine, the government must prove more than Duke’s mere association with Chambers and Nunn or his mere knowledge of their transaction. See United States v. Grey Bear, 828 F.2d 1286, 1292-93 (8th Cir.1987), vacated in part, 836 F.2d 1088 (8th Cir.1987). Rather, the government must prove: “(1) that the defendant associated himself with the unlawful venture; (2) that he participated in it as something he wished to bring about; and (3) that he sought by his actions to make it succeed.” United States v. Lanier, 838 F.2d 281, 284 (8th Cir.1988) (citing United States v. Sopczak, 742 F.2d 1119, 1121-22 (8th Cir.1984)). The government must prove some “affirmative participation which at least encourages the perpetrator.” United States v. Ivey, 915 F.2d 380, 384 (8th Cir.1990). Duke alleges that the evidence was insufficient to prove any such active, affirmative participation. When reviewing his argument, “we examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences.” Id. at 383. We can reverse only if “a reasonable fact-finder must have entertained a reasonable doubt" } ]

[ { "docid": "10936499", "title": "", "text": "addressed whether plaintiffs can meet this standard. In addition to the breach of the duty of fair representation, another exception, or perhaps reformulation of the exception in Vaca, is the futility of exhaustion. In Fizer v. Safeway Stores, Inc., 586 F.2d 182, 183 (10th Cir.1978), the Tenth Circuit Court of Appeals noted that a claim of futility will suspend the general requirement of exhaustion. The court stated that an employee’s vague, subjective conclusions did not approach the requisite of a “clear and positive showing of futility.” Id. In Fizer, however, the court was analyzing a summary judgment motion, not a motion to dismiss. It is much easier for a plaintiff to withstand a motion to dismiss than a motion for summary judgment. In the instant case, plaintiffs allege a conspiracy of employer and unions regarding the closing of the old plant, the reopening of the new plant, the failure to represent plaintiffs in bargaining and the renegotiation of a separate contract between defendants unions and employer. Under quite similar facts in Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 875 (3d Cir.1972), the court held that exhaustion of grievance procedures was not required when the employee alleged a conspiracy of employer and union to discharge him from work. The application of the futility rule to the present case makes policy sense. Employees should not be required to exhaust the very internal grievance remedies that they claim cannot afford them relief. In sum, plaintiffs argue both the futility of exhaustion and a breach of the duty of fair representation as exceptions to the requirement that plaintiffs exhaust grievance procedures. The sole issue at the present time, though, is whether plaintiffs’ complaint can withstand a motion to dismiss. Defendants contend that plaintiffs have failed to state a claim because they did not make factually specific allegations, citing, among other cases, Wallace v. American Telephone & Telegraph Co., 460 F.Supp. 755, 760 (E.D.N.Y.1978), Collins v. Wilson Foods Corp., No. 77-2235 (D.Kan., unpublished, March 15, 1978), and Johnson v. Wilson Foods Corp., No. 77-2051 (D.Kan., unpublished, August 26, 1977). The Court finds" } ]

[ { "docid": "22815281", "title": "", "text": "the instant case in the following two respects. First, Clayton involved a suit by an employee for an alleged violation of a union’s duty of fair representation when processing the employee’s grievance, wherein the employee had previously exhausted the administrative procedures established under the collective bargaining agreement. Clayton dealt solely with the question of whether “exhaustion of internal union procedures” was necessary in a case alleging a union’s breach of its duty of fair representation. Id. at 687, 101 S.Ct. at 2094. (emphasis in original). In fact, the court expressly stated that the general rule remains: “An employee seeking a remedy for an alleged breach of the collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a). Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653 [85 S.Ct. 614, 616, 13 L.Ed.2d 580] (1965); see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 [96 S.Ct. 1048, 1055, 47 L.Ed.2d 231] (1976); Vaca v. Sipes, 386 U.S. 171, 184 [87 S.Ct. 903, 913, 17 L.Ed.2d 842] (1967).” Thus, even under Clayton, exhaustion of remedies is the general rule, with a very limited exception being applicable in a breach of fair representation case where an employee has previously exhausted the procedures established by the collective bargaining agreement and the employee can prove that resort to the intra-union procedures would be a-“useless gesture.” Id. at 693, 101 S.Ct. at 2097. In the instant case, the plaintiff Kross has failed to take the first step of exhausting his remedies before the Employees’ Benefit Committee. Thus, we agree with the district court that the exhaustion doctrine is applicable to the plaintiff’s claim that Western Electric discharged him from his employment to prevent his service pension from vesting. Second, the Supreme Court in Clayton did not set forth an absolute rule that exhaustion will be excused in cases in which the relevant administrative procedure" }, { "docid": "13243549", "title": "", "text": "as a matter of public policy since both triggers of section 301 preemption are present: resolution of the state-law claim directly requires construction of the terms of the agreement itself, and the rights sought to be vindicated and the relationship between the parties are created not by state law, but by the collective bargaining agreement itself. Since this claim is preempted by section 301, it should have been first resolved through the grievance procedures established by the collective bargaining agreement. As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by the employer and union as the mode of redress. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (footnote omitted) (emphasis in original). “[A]n employee [canjnot sidestep the grievance machinery provided in the contract and ... unless he attempts] to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer in the District Court [will] be dismissed.” Hines v. Anchor Motor Freight, 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976). It is undisputed that Terwilliger did not exhaust the remedies available to him either with the Union or pursuant to the collective bargaining agreement. “A rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness, ... as well as eviscerate a central tenet of federal-labor contract law that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance.” Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1915. Therefore, this case should have been dismissed by the district court for failure to exhaust available remedies. Terwilliger claims that he is excused from exhausting the available remedies either because pursuing such remedies in this instance would have been futile or because Greyhound repudiated the contract and its dispute resolution procedures. The record does not support either of these contentions. A." }, { "docid": "21574740", "title": "", "text": "of fair representation and breach of contract. It is well-settled that a plaintiff must exhaust contract remedies before seeking review in federal court. To recover from an employer for a violation of a collective bargaining agreement, an employee must first show that his union breached its duty of fair representation in handling his grievance. Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983). To establish that the union breached its duty of fair representation, the employee “must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (emphasis in original). This Court has stated that “[i]t is axiomatic that an aggrieved employee must exhaust any exclusive grievance and arbitration procedure created in a collective bargaining agreement prior to bringing a ... suit against the employer.” Poole v. Budd Co., 706 F.2d 181, 183 (6th Cir.1983). Appellant brought his section 1208(b) suit before exhaustion of the arbitration and grievance procedures set out in the collective bargaining agreement. He claims, however, that he fits within the exceptions to total exhaustion carved out in Clayton v. International Union, U.A.W., 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Exhaustion is not required where: 1) the union officials appear so hostile that a fair hearing is not possible; 2) the grievance and arbitration procedure is inadequate to address the problem or award full relief; or 3) exhaustion would delay the ability to get a judicial hearing on the claim. See Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967) (exhaustion to be disregarded only if employer’s conduct repudiates contractual remedies, use of grievance procedure would be futile, or union breaches duty by wrongfully refusing to process grievance). The District Court expressly found “no serious suggestion of any basis for finding that exhaustion of plaintiff’s internal appeal rights will be futile” and held that exhaustion before filing his federal action was not excused. Appellant points to" }, { "docid": "9893994", "title": "", "text": "U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691. That principle is equally applicable to this case. Our recent decision in Foust v. Electrical Workers, 572 F.2d 710, 716-17, is not to the contrary and is premised on Union conduct not present in the case at bar. II. The Employer Our affirmance of the trial court judgment as to the Union reaches neither the merits of the issue of fair representation nor the issue of allowable discharge. It is based solely on the failure to exhaust intraunion procedures contained in the Union constitution and admissions contained in plaintiff’s deposition which negate rather than establish the futility of pursuing these remedies. Exhaustion of remedy is a defense available to the employer under a bargaining agreement, Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, but not under these circumstances. See Orphan v. Furnco Construction Corporation, 7 Cir., 466 F.2d 795, 799-800; Harrison v. Chrysler Corp., 7 Cir., 558 F.2d 1273; Petersen v. Rath Packing Co., 8 Cir., 461 F.2d 312, 315; Retana v. Apartment Operators, Local 14, 9 Cir., 453 F.2d 1018, 1027 n. 16. As a result we must reject Safeway’s contention that it is a beneficiary of the Union-employee contract contained in the Union constitution. So, too, we must reject Safeway’s argument that the outcome of the arbitration would have been the same regardless of whether plaintiff’s present claims had been fully explored by the toxicologist’s testimony during the hearing. This argument is based on the deposition of the arbitrator who states he would have reached the same result. A summary judgment cannot be so premised. Safeway’s position is the classic one considered by the Supreme Court in Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231. The finality of the arbitration weighs heavily in its favor and cannot be upset by plaintiff except under exceptional circumstances. Plaintiff is entitled to his day in court but can only succeed by carrying an extremely heavy burden of proof. Plaintiff must clearly show a breach of duty by the Union (denied by" }, { "docid": "15758986", "title": "", "text": "“building agreement”, plaintiffs have side-stepped the grievance and arbitration procedures of that agreement. The requirement that beneficiaries of a collective bargaining agreement must exhaust available mandatory grievance and arbitration procedures before recourse to judicial remedies was announced in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). In Maddox, the plaintiff brought suit against his employer in an Alabama state court to recover severance pay allegedly due pursuant to the terms of collective bargaining agreement. The Supreme Court first concluded that the contract sued on was subject to section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), and that the suit was therefore governed by federal law. Noting that the suit was based on the contract, and that therefore “the remedy sought . .. did not differ from any that the grievance procedure had power to provide”, 379 U.S. at 657, 85 S.Ct. at 618, the Court determined that the federal policy favoring arbitration required that parties be precluded from side-stepping the contractual grievance process. The Court thus held: As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. Id. at 652, 85 S.Ct. at 616 (italics in original). Although subsequent Supreme Court cases recognize exceptions to the exhaustion requirement, they also confirm the validity of the general rule. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 357, 91 S.Ct. 409, 412, 27 L.Ed.2d 456 (1971); Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 329, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967). In Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), the Supreme Court held that employees need not exhaust grievance procedures established" }, { "docid": "1524224", "title": "", "text": "Anchor Motor Freight, Inc., 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). However, the courts temper the exercise of their jurisdiction in such suits to give full play to procedures established in collective bargaining agreements for the settlement of employee grievances. This policy is mandated by the declaration of Congress that “[f]inal adjustment by a method agreed upon by the parties is . the desirable method for settlement of grievance disputes . . . 29 U.S.C. § 173(d). To effectuate that policy, the Supreme Court has held that a suit by an employee who has sidestepped the grievance machinery provided in a collective bargaining agreement must be dismissed by the district court. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The Court has also declared that, where an employee’s grievance has been submitted to arbitration in accordance with a procedure chosen by the parties, the district court ordinarily may not review the merits of the arbitration award. Hines v. Anchor Motor Freight, Inc., supra at 563, 96 S.Ct. 1048. This policy of noninterference with contractual grievance procedures, however, has limits. The adequacy of such procedures as a method of resolving employee grievances depends in essential part on the union’s fair representation of the employee in his dispute with the employer. The union breaches its duty of fair representation when its conduct toward the member is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). A breach of that duty relieves the employee of any “express or implied requirement that disputes be settled through contractual procedures . . ..\" Hines v. Anchor Motor Freight, Inc., supra at 567, 96 S.Ct. at 1058. Moreover, even if the grievance has been taken to arbitration, the union’s breach removes any contractual finality of the arbitration decision “if it seriously undermines the integrity of the arbitral process.” Id. Under the express terms of the collective bargaining agreement, Harrison was bound by the final decision of the Appeal Board denying him back pay. He" }, { "docid": "22954584", "title": "", "text": "duty of fair representation owed to the plaintiffs by failing to file and prosecute plaintiffs’ claims through the grievance and arbitration procedures, and that the union had conspired with Continental Can to deprive the plaintiffs of their rights under the collective bargaining agreement. The union also moved for summary judgment. On July 27, 1983, the district court granted both defendants’ motions for summary judgment. As to the union, the court held that plaintiffs’ claims were barred by the applicable six-month statute of limitations. Plaintiffs do not appeal that decision. As to the Company, the district court held that notwithstanding the state law fraud claims, the plaintiffs’ complaints fell within the scope of the grievance and arbitration provisions. The court determined that it was “incumbent upon plaintiffs to attempt, unless otherwise excused, to present their complaints concerning ‘fraud’ and breach of some ‘contract’ other than the collective bargaining agreement through the grievance mechanism____” The court considered and rejected plaintiffs’ arguments that they were excused from resorting to those procedures because it would have been futile. The court went on to find that an exhaustion of remedies requirement barred plaintiffs’ ERISA claims because they had not invoked the arbitration procedures provided by the pension plan agreement. Exhaustion of Remedies Under Collective Bargaining Agreement Employees claiming breach of a collective bargaining agreement or wrongful termination of employment by their employer are bound by that agreement’s terms providing a method for resolving disputes between them and their employer. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967). When employees asserting an arbitrable grievance have not attempted to utilize the dispute resolution machinery available to them under the agreement, their independent suit against the employer must be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). It is undisputed that the plaintiffs have never initiated a grievance against Continental Can concerning the closing of Plant No. 411 or any misrepresentations made prior" }, { "docid": "23473236", "title": "", "text": "the union member may timely file a grievance, he may properly claim that the union has breached its duty of fair representation in handling that grievance. And, so long as the issue of that breach of duty of fair representation is before the court, Butler holds that the breach of contract claim on which that grievance is based is timely raised. There is no indication here that the 1971 grievance was considered as not timely filed. Furthermore, the applicable collective bargaining agreements do not state any time limit for filing grievances. Since the plaintiffs’ claims emanate from the denial of the 1971 grievance, they are not barred by the statute of limitations. II. STATUS OF BREACH OF CONTRACT CLAIMS There can no longer be any doubt that where the parties to a collective bargaining agreement provide therein for binding arbitration of disputes between the employee and employer, the employee cannot sidestep that grievance machinery. Unless he has attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer will be dismissed. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614,13 L.Ed.2d 580 (1965); Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Only when the union has breached its duty of fair representation to the union member may that member bypass the collective bargaining agreement procedure and proceed against the employer for the breach of contract claim. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Supreme Court of the United States in Hines, supra, faced the issue of what measure of finality would be given to the grievance procedure when a dissatisfied union member alleges a breach of the duty of fair representation by the union. The court said: * * * In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with" }, { "docid": "13451924", "title": "", "text": "165, 103 S.Ct. at 2291; Mitchell, 451 U.S. at 62, 101 S.Ct. at 1563; Vaca, 386 U.S. at 186, 87 S.Ct. at 914; Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). At this point it is worth returning to the exhaustion requirement. As noted above, a worker must ordinarily resolve disputes with his union through internal proceedings, and settle arguments with his employer through the private resolution afforded by union agency. Republic Steel, 379 U.S. at 652-53, 85 S.Ct. at 616; King v. New York Telephone Co. Inc., 785 F.2d 31, 33 (2nd Cir.1986); Nanney, 600 F.Supp. at 1251-53. Prior to the Supreme Court’s Clayton decision, there was a difference of opinion as to whether and when an employee was required to exhaust all internal procedures for resolving his grievances against the employer or his complaints against the union. Clayton, 451 U.S. at 683-85 & nn. 5-8, 101 S.Ct. at 2092-95 & nn. 5-8 (summarizing different rules). In Clayton, the Court held that neither kind of exhaustion was required “where an aggrieved employee cannot obtain either the substantive relief he seeks or reactivation of his grievance,” id. at 693, 101 S.Ct. at 2097, and where there is no “reasonable possibility that the employee’s claim will be privately resolved.” Id. at 696, 101 S.Ct. at 2099. Clayton excused resort to either internal or private proceedings to settle grievances against a union and an employer, thereby freeing a worker to maintain an immediate hybrid suit whenever his grievance has been poorly handled. Of course, the employer’s alleged breach of the collective bargaining agreement will occur first; only that breach can bring about a grievance proceeding in the first place. The union’s alleged breach will naturally occur later, during attempts to resolve the worker-employer dispute. Both these entities’ violations of a worker’s rights must be proved to succeed in a hybrid suit. Finally, almost any act which would allow recovery for breach of the duty of fair representation would also support a finding of futility. At the same time, not all acts that would" }, { "docid": "5432040", "title": "", "text": "that an employee must exhaust intraunion remedies in a suit against an employer seems inconsistent with the national labor policy as developed in a series of Supreme Court cases. See 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); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). See also Steinman v. Spector Freight System, Inc., 441 F.2d 599 (2d Cir. 1971). These cases are relevant, although concerned with the exhaustion of contract remedies as distinguished from the exhaustion of internal union remedies. The exhaustion doctrine, derived from Republic Steel and modified by later cases, holds that an employee could not sidestep the grievance machinery provided in the contract and that unless he attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer in the District Court would be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). [Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 563, 96 S.Ct. at 1055.] See also Vaca v. Sipes, supra, 386 U.S. at 184, 87 S.Ct. at 913. Under the case law, however, there exists an important exception to the requirement that the employee exhaust his contractual remedies. An employee may escape a defense based on his failure to exhaust, as well as avoid the exclusive nature of the contract remedies, “provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Vaca v. Sipes, supra, 386 U.S. at 186, 87 S.Ct. at 914. Accord, Clayton v. ITT Gilfillan, supra, 623 F.2d at 568. These cases establish a means of resolving the tension between the policy of noninterference with labor matters and the right of employees to bring suit for breach of contract under section 301. Once a breach of the duty of fair representation occurs, the employee is free to ignore the private procedures dictated" }, { "docid": "5432039", "title": "", "text": "1317-18. That court believed that the policy of settling labor disputes without involvement of the courts outweighs any disadvantage to the employee. The court in Varra relied on statements in cases from the Seventh Circuit, which indicate in dictum that an employer may assert such a defense in limited circumstances: The employer may properly assert that the employee has an obligation under the collective bargaining agreement to resort to intraunion appellate procedures for this limited purpose [as a method by which fair representation may be regained and the grievance procedure revised]. To raise this defense, however, the employer must establish that an intraunion appeal could result in reversal of the union’s refusal to press the grievance and that the grievance could be reinstated in accordance with the provisions of the collective bargaining agreement. [Harrison v. Chrysler Corp., supra, 558 F.2d at 1279.] Accord, Baldini v. Local 1095, UAW, supra, 581 F.2d at 150 (7th Cir.) (dictum). In each of these cases, however, the courts did not dismiss the employee’s claim against the union. The requirement that an employee must exhaust intraunion remedies in a suit against an employer seems inconsistent with the national labor policy as developed in a series of Supreme Court cases. See 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); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). See also Steinman v. Spector Freight System, Inc., 441 F.2d 599 (2d Cir. 1971). These cases are relevant, although concerned with the exhaustion of contract remedies as distinguished from the exhaustion of internal union remedies. The exhaustion doctrine, derived from Republic Steel and modified by later cases, holds that an employee could not sidestep the grievance machinery provided in the contract and that unless he attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer in the District Court would be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct." }, { "docid": "9893993", "title": "", "text": "which we have stated need be made. Imel v. Zohn Mfg. Co., 10 Cir., 481 F.2d 181, 184, cert, denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469. His vague subjective conclusions of Union’s turmoil and officer indifference, stated only in his deposition, are insufficient to show that his charges would not have received a fair hearing within the Union. The fact remains that he never actually filed charges in accordance with the constitution and therefore never gave the system a chance to work. In light of plaintiff’s failure in this effort, summary judgment in favor of the Union was clearly correct under our decision in Imel, supra. We reaffirm the principle on which that case was based, that the court should stay its hand to avoid “ ‘interference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own internal affairs.’ ” Imel, supra, at 183, citing Brady v. Trans World Airlines, Inc., 3 Cir., 401 F.2d 87, 104, cert, denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691. That principle is equally applicable to this case. Our recent decision in Foust v. Electrical Workers, 572 F.2d 710, 716-17, is not to the contrary and is premised on Union conduct not present in the case at bar. II. The Employer Our affirmance of the trial court judgment as to the Union reaches neither the merits of the issue of fair representation nor the issue of allowable discharge. It is based solely on the failure to exhaust intraunion procedures contained in the Union constitution and admissions contained in plaintiff’s deposition which negate rather than establish the futility of pursuing these remedies. Exhaustion of remedy is a defense available to the employer under a bargaining agreement, Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, but not under these circumstances. See Orphan v. Furnco Construction Corporation, 7 Cir., 466 F.2d 795, 799-800; Harrison v. Chrysler Corp., 7 Cir., 558 F.2d 1273; Petersen v. Rath Packing Co., 8 Cir., 461 F.2d 312, 315; Retana" }, { "docid": "20123821", "title": "", "text": "motion, shows no genuine dispute over a material fact and that the moving party is entitled to judgment as a matter of law. See Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir.1991). A moving party may rely on the pleadings, affidavits, depositions and other materials to show the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c). The party opposing the motion must then set forth specific facts showing a genuine issue for trial and may not merely rely on the pleadings. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Both parties agree that the general rule regarding actions for breach of a collective bargaining agreement is that an employee must attempt to exhaust her contractual remedies before she can bring suit under section 301 of the Act. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). This is not an absolute rule. Exhaustion is not required where the plaintiff can show that the union breached its duty of fair representation or where further resort to contractual remedies under a collective bargaining agreement would be futile. See Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967). In this action, Bonser alleges that further prosecution of her harassment claim under the grievance procedure would be futile because Safeway could again agree to a settlement but fail to adhere to it. Safeway responds that Bonser cannot establish futility without at least attempting to enforce the Settlement through arbitration, step three of the grievance process, or by initiating a new grievance. Case law construing exhaustion requirement under the Act does not bear out Safeway’s contention. For example, in National Post Office Mail Handlers Local No. 305 v. United States Postal Service, 594 F.2d 988 (4th Cir.1979), the appellate court reinstated a union’s claim against the Postal Service for failure to adhere to several settlement agreements. There, the union representing postal employees instituted a grievance against the" }, { "docid": "6828105", "title": "", "text": "Teamsters International Union. Maloney has several plants from which mixed concrete is delivered, and each driver is assigned to a particular plant. The collective bargaining agreement between Maloney and the union has a seniority provision which reads as follows: When ability, merit, and physical fitness are equal, employees with the greatest seniority will be given preference in advancement to higher-rated jobs, except promotions to positions excluded from the coverage of this agreement. Increases or decreases of working forces shall also be on the same basis. (App. 9). Winter’s lawsuit alleges that Maloney breached this provision by according him only “plant wide” rather than “company wide” seniority, and that the union breached its duty of fair representation in its handling of two grievances that he filed in 1971 and 1974 protesting the company’s failure to comply in this respect with the collective bargaining agreement. On motion by the union for summary judgment, the district court dismissed the complaint as to the union on the ground that Winter had failed to exhaust the internal remedies available to all union members under the constitution, such exhaustion being a prerequisite to commencement of any civil action, Imel v. Zohn Manufacturing Co., 481 F.2d 181 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974); compare Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The district court also granted Maloney’s motion for summary judgment for the following stated reasons: In view of the Court’s holding that plaintiff has failed to exhaust his internal union remedies, the Court is now compelled to dismiss plaintiff’s complaint as to Maloney for similar reasons. Vaca v. Sipes, supra; Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Scott v. Anchor Motor Freight, Inc., 496 F.2d 276 (6th Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974); Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir. 1973). (App. 90). I agree with the majority opinion, on the facts of this case, that the defense of failure to exhaust union remedies" }, { "docid": "9360085", "title": "", "text": "collective bargaining agreement or retaliatory discharge. A. Alleged Breach of the Collective Bargaining Agreement Federal substantive law governs suits based on a collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 655, 85 S.Ct. 614, 617-18, 13 L.Ed.2d 580 (1965); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Congress has specified that “[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes_” 29 U.S.C. § 173(d). The Supreme Court has interpreted this congressional statement of policy as requiring courts to defer to the grievance procedures selected by the parties to a collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Republic Steel v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965). Although collective bargaining agreements often provide for binding arbitration as the ultimate method for resolution of employee grievances, this federal policy of deference also applies to contractual grievance procedures that provide dispute resolution methods other than binding arbitration. Huffman v. Westinghouse Electric Corp., 752 F.2d 1221 (7th Cir.1985). Under this federal labor policy of deference to contractual grievance procedures, an employee must exhaust the grievance procedures; further, the employee is barred from relitigating the issue in the courts. Huffman v. Westinghouse Electric Corp., 752 F.2d 1221, 1223 (7th Cir.1985); Haynes v. United States Pipe & Foundry Co., 362 F.2d 414, 416 (5th Cir.1966). The Supreme Court has created two exceptions to this general rule: (1) when the employer’s conduct constitutes a repudiation of the contract procedures, and (2) when the union breaches its duty of fair representation by wrongfully refusing to process the employee’s grievance. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). Mrs. Peffley submitted her grievance under the procedures provided in the collective bargaining agreement between the union and Durakool. Under that agreement, if the grievance is not settled through" }, { "docid": "23497828", "title": "", "text": "expressed the policy behind this rule. The reason for this requirement is that intra-Union remedies are part and parcel of the industrial in-house procedure for settling labor disputes. The primary benefit of requiring initial submission of employee complaints against a union that refuses to help process a grievance against a company is that internal machinery can settle difficulties short of court action. Thus, federal policy requires “staying the hand of ‘judicial in terference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own internal affairs.’ ” Imel v. Zohn Mfg. Co., 481 F.2d 181, 183 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974), quoting Brady v. Trans-World Airlines, 401 F.2d 87, 104 (3rd Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 684, 21 L.Ed.2d 691 (1969). Appellant’s three arguments on this exhaustion issue are not persuasive. First, appellant contends that the filing of the grievance constitutes compliance with the requirement of exhausting internal union remedies. But that contention confuses the requirement of exhaustion of internal union remedies, see e. g., Bsharah v. Eltra Corporation, supra, 394 F.2d 502, with the requirement of resort to exclusive contractual remedies under the collective bargaining agreement. See Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Exhaustion of internal union remedies and resort to exclusive contractual remedies are separate prerequisites to an employee suit. Exhaustion of internal union remedies cannot be accomplished by merely filing a grievance. Bsharah v. Eltra Corporation, supra, 394 F.2d 502; Harrington v. Chrysler Corporation, supra, 303 F.Supp. 495. Appellant points to this Court’s holding in Ruzicka v. General Motors Corporation, supra, 523 F.2d 306, as precedent for his position, but that case supports the contrary result. In Ruzicka, the employee had for a period of 27 months sought intra-union relief against his local union, and this Court held that this was sufficient exhaustion of his intra-union remedies to permit the district court to hear the case. The Court contrasted the situation before it with" }, { "docid": "7376731", "title": "", "text": "an employee alleges that his union breached its duty of fair representation in failing to take the employee’s grievance to arbitration as it could have under the collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. at 914; Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). The Supreme Court ruled in Vaca that a “wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation with its handling of the employee's grievance.” Vaca, 386 U.S. at 186, 87 S.Ct. at 914. In addition, an employee is not limited to the exclusive remedial procedures established by the contract when the conduct of the employer amounts to a repudiation of these contractual procedures. Id. at 185, 87 S.Ct. at 914. The Supreme Court in Vaca cautioned that settlement of a grievance short of arbitration does not mean the union necessarily breached its duty of fair representation. Id. at 192, 87 S.Ct. at 918. “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining agreement is arbitrary, discriminatory or in bad faith.” Id. at 190, 87 S.Ct. at 916. This exhaustion requirement has been further eroded in recent decisions in which the Supreme Court has created a case-by-case factual standard governing exhaustion, depending on when it becomes clear that any effort to proceed formally with contractual or administrative remedies would be wholly futile. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). In Glover, the Court found that it would be futile to require plaintiffs to submit their claims of race discrimination to a grievance procedure administered by the union, the company, or both when these are the very groups about which their real complaint was made. Id. at 330, 89 S.Ct. at 551. Under those circumstances, the Court" }, { "docid": "11780504", "title": "", "text": "is barred by the well-established National Labor Relations Act’s six-month statute of limitations. Appellant argues that his claim is a straightforward breach of contract claim governed by the Texas statute of limitations of four years for contract actions. Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). A § 301 breach of contract and fair representation suit comprises two distinct causes of action, one against the employer, and the other against the union. Section 301 of the LMRA, 29 U.S.C. § 185, provides an employee with a federal cause of action against his employer for breach of the collective bargaining agreement. The suit against the union for breach of the duty of fair representation is implied under the scheme of the National Labor Relations Act. DelCostello, 462 U.S. at 165, 103 S.Ct. at 2290. The two causes of action are “inextricably interdependent”, and have come to be known as a hybrid § 301/duty of fair representation suit. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). The interdependency arises from the nature of the collective bargaining agreement. If the arbitration and grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the employee may not sue his employer under § 301 until he has exhausted the procedure, Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Further, he is bound by the procedure’s result unless he proves 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). Thus, the “indispensable predicate” for a § 301 action in this situation is a fair representation claim against the union. Mitchell, 451 U.S. at 62, 101 S.Ct. at 1564. As the Supreme Court stated in DelCostel-lo: To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union. The" }, { "docid": "11780505", "title": "", "text": "1559, 67 L.Ed.2d 732 (1981). The interdependency arises from the nature of the collective bargaining agreement. If the arbitration and grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the employee may not sue his employer under § 301 until he has exhausted the procedure, Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Further, he is bound by the procedure’s result unless he proves 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). Thus, the “indispensable predicate” for a § 301 action in this situation is a fair representation claim against the union. Mitchell, 451 U.S. at 62, 101 S.Ct. at 1564. As the Supreme Court stated in DelCostel-lo: To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union. The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. 462 U.S. at 166, 103 S.Ct. at 2291 (citations omitted). In essence the hybrid § 301/fair representation suit is brought “in order to set aside a final and binding determination of a grievance, arrived at through the collectively bargained method of resolving the grievance. It is, therefore, a direct challenge to the private settlement of disputes under the collective bargaining agreement.” Mitchell, 451 U.S. at 67, 101 S.Ct. at 1566 (Stewart, J., concurring); DelCos-tello, 462 U.S. at 166, 103 S.Ct. at 2291. On the other hand, if the collective bargaining agreement does not provide that the grievance and arbitration procedure is the exclusive and final remedy for breach of contract claims, the employee may sue his employer in federal court under § 301, Vaca v. Sipes, 386 U.S. 171, 183, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967), and the state statute of limitations applicable to" }, { "docid": "23497827", "title": "", "text": "his intraunion remedies. The UAW Constitution has provided for internal appeals to local union membership meetings, to the International Executive Board, to the Constitutional Convention, and to the Public Review Board. Appellant has made no effort to utilize these internal appeal procedures, which he was required to do before being able to charge his local union with unfair representation, see Ruzicka v. General Motors Corporation, 523 F.2d 306 (6th Cir. 1975), Dill v. Greyhound Corp., supra, 435 F.2d 231, Bsharah v. Eltra Corporation, 394 F.2d 502 (6th Cir. 1968), Imel v. Zohn Manufacturing Company, 481 F.2d 181 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974), Harrington v. Chrysler Corporation, 303 F.Supp. 495 (E.D. Mich.1969), unless resort to such procedures would be futile. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). Exhaustion of intra-union remedies is an important prerequisite to allowing such employee suits as this one. This court in Ruzicka v. General Motors Corporation, supra, 523 F.2d at 311, expressed the policy behind this rule. The reason for this requirement is that intra-Union remedies are part and parcel of the industrial in-house procedure for settling labor disputes. The primary benefit of requiring initial submission of employee complaints against a union that refuses to help process a grievance against a company is that internal machinery can settle difficulties short of court action. Thus, federal policy requires “staying the hand of ‘judicial in terference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own internal affairs.’ ” Imel v. Zohn Mfg. Co., 481 F.2d 181, 183 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974), quoting Brady v. Trans-World Airlines, 401 F.2d 87, 104 (3rd Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 684, 21 L.Ed.2d 691 (1969). Appellant’s three arguments on this exhaustion issue are not persuasive. First, appellant contends that the filing of the grievance constitutes compliance with the requirement of exhausting internal union remedies." } ]

[ { "docid": "22608689", "title": "", "text": "v. Kras, 409 U. S. 434, 445-446 (1973). We also do not believe that, in the context of provisions designed to exempt certain claims from discharge, a debtor has an interest in discharge sufficient to require a heightened standard of proof. We are unpersuaded by the argument that the clear-and-convincing standard is required to effectuate the “fresh start” policy of the Bankruptcy Code. This Court has certainly acknowledged that a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt, 292 U. S. 234, 244 (1934). But in the same breath that we have invoked this “fresh start” policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the “honest but unfortunate debtor.” Ibid. The statutory provisions governing nondischargeability reflect a congressional decision to exclude from the general'policy of discharge certain categories of debts — such as child support, alimony, and certain unpaid educational loans and taxes, as well as liabilities for fraud. Congress evidently concluded that the creditors’ interest in recovering full payment of debts in these categories outweighed the debtors’ interest in a complete fresh start. We think it unlikely that Congress, in fashioning the standard of proof that governs the applicability of these provisions, would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud. Requiring the creditor to establish by a preponderance of the evidence that his claim is not dischargeable reflects a fair balance between these conflicting interests. I — I HH Our conviction that Congress intended the preponderance standard to apply to the discharge exceptions is reinforced by the structure of § 523(a), which groups together in the same subsection a variety of exceptions without any indication that any particular exception is subject to a special standard of proof. The omission of" } ]

[ { "docid": "1937725", "title": "", "text": "which discharge is normally granted, a debtor may not be discharged from a debt for a tax if the debtor “willfully attempted in any manner to evade or defeat such tax.” The IRS bears the burden of proving nondischargeability by a prepon derance of the evidence. “The allocation of the burden of proof to the IRS reflects the well settled rule that exceptions to discharge must be strictly construed against the creditor and liberally in favor of the honest debtor in order to further the paramount bankruptcy policy of affording an economic ‘fresh start.’ ” In that connection, the Supreme Court stated in Grogan that: [A] central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of préxisting debt. But it also stated that: The statutory provisions governing non-dischargeability reflect a congressional decision to exclude from the general policy of discharge certain categories of debts — such as child support, alimony, and certain unpaid educational loans and taxes, as well as liabilities for fraud. Congress evidently concluded that the creditors’ interest in recovering full payment of debts in these categories outweighed the debtors’ interest in a complete fresh start. Neither section 523, nor other sections of the Code, defines what constitutes a “willful attempt to evade or defeat a tax,” or articulates standards for making that determination, but standards have evolved in the caselaw. Particularly relevant with respect to this matter are the decisions in this Circuit in Tudisco v. IRS (In re Tudisco), and in this District in Wright v. IRS (In re Wright). A. Second Circuit Guidance In Tudisco, the Second Circuit (there faced with the relatively easy case of a debtor who failed to file tax returns, at least until a later year, and submitted a “patently false” affidavit to his employer to avoid tax withholding) set forth certain principles for the determination of cases under section 523. But because the facts in" }, { "docid": "13043425", "title": "", "text": "one of the primary tenets of bankruptcy policy. Indeed, “a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (citations omitted). At the same time, however, a separate equitable policy mandates that any such mechanism for an unencumbered fresh start should only redound to the benefit of those debtors who are indeed unfortunate, yet honest. Id. at 286-87, 111 S.Ct. 654. Through the discharge exceptions set forth in § 523(a), the Bankruptcy Code offers a means of denying those individuals who do not qualify as “honest but unfortunate debtors” the benefits of a fresh start. Id. at 287, 111 S.Ct. 654. Thus, as an exception to the general discharge rule, the Bankruptcy Code provides: (a) A discharge under section 722, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor of any debt— (1) for a tax or a customs duty— (B) with respect to which a return, if required— (i) was not filed; or (ii) was filed after the date on which such return was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition; or (C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax; 11 U.S.C. § 523(a)(1)(B) and (C). It is a long-standing principle of law that discharge exceptions be narrowly construed against the creditor and in favor of the debtor. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915); Schweig v. Hunter (In re Hunter), 780 F.2d 1577, 1579 (11th Cir.1986). Furthermore, the creditor bears the burden of establishing nondischargeability under § 523(a). FED. R. BANKR. P. 4005; see also Hunter, 780 F.2d at 1579; Goldberg Sec., Inc.," }, { "docid": "177652", "title": "", "text": "the principal purposes of the Bankruptcy Code is to “provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan, 498 U.S. at 286, 111 S.Ct. 654 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). An “honest but unfortunate debt- or” is thus able to get a “fresh start,” unencumbered by their past debts. Id. at 286-87, 111 S.Ct. 654. That fresh start, however, has never been intended to pertain to all debts. The Code explicitly makes some debts nondischargeable in bankruptcy, including child support, alimony, and liabilities for fraud, because “Congress evidently concluded that the creditors’ interest in recovering full payment of debts in these categories outweighed the debtors’ interest in a complete fresh start.” Id. at 287, 111 S.Ct. 654; see also Cohen v. de la Cruz, 523 U.S. 213, 217, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). Section 523(a) thus “gives creditors an opportunity to prove that particular debts arose through impermissible means, and advances the cornerstone bankruptcy principal that relief befall only the debtor with clean hands.” In re Luthra, 182 B.R. 88, 91 (E.D.N.Y.1995); see also In re Weiss, 235 B.R. 349, 360 (Bankr.S.D.N.Y.1999) (Section 523(a)(4) is “an extension of the general bankruptcy policy that discharge is not meant to protect the dishonest debtor.”), aff'd, 255 B.R. 115 (S.D.N.Y.2000). It is the unique character of a bankruptcy discharge proceeding that counsels against holding that a valid settlement agreement bars a creditor from later attempting to prove that a certain debt arises from fraud or a defalcation of a fiduciary duty. Instructive here, although not dispositive, is the Supreme Court’s ruling in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). Broum considered the application of res judicata in the context of a bankruptcy discharge proceeding pursuant to the pre-1979 Bankruptcy Act. Section 17a(4) of the Act provided, much like the present" }, { "docid": "22027338", "title": "", "text": "****** (B) the plan provides that all of the debtor’s projected disposable income to be received in the three year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan. (2) For purposes of this subsection, \"disposable income” means income which is received by the debtor and which is not reasonably necessary to be expended— (A) for the maintenance or support of the debtor or a dependant of the debtor; and (B) if the debtor is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business. 11 U.S.C. § 1325(b). Thus, to paraphrase, section 1325(b) mandates that any plan not proposing to pay creditors in full must commit all of the debtor’s anticipated \"disposable income” for a period of at least a three years. See e.g., Anderson v. Satterlee (In re Anderson), 21 F.3d 355, 357-58 (9th Cir.1994). . A standard which fails to take into account the impact of a debtor’s impending discharge inequitably threatens to provide a windfall at the expense of innocent ex-spouses. In re Straub, 192 B.R. at 528-29. Aside from such considerations, however, failure to take into account the effect of discharge upon the debtor’s “ability to pay” will provide a discharge to many debtors who in fact have the capacity to pay, a result at odds with the general policy that discharge exceptions relating to marital obligations should be construed in favor of nondischargeability. Miller v. Gentry (In re Miller), 55 F.3d 1487, 1489 (10th Cir.1995) (in contrast to the narrow construction generally afforded to discharge exceptions, provisions relating to familial obligations warrant a broad reading). . Certainly, the policy behind section 523(a)(15) demands something more than a shortsighted inquiry which lends itself to such inequitable results. \"[A] central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of" }, { "docid": "12670078", "title": "", "text": "that “forfeiture” as used in § 523(a)(7) refers only to a penal sanction resulting from a party’s wrongdoing, and not more generally to any loss of a right. We observe that this interpretation finds support both under the policy behind bankruptcy law in general and under judicial application of § 523(a)(7). The central purpose of the Bankruptcy Code is “to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debts,” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (internal quotation marks omitted). The Bankruptcy Code limits this “fresh start” “opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debtor.’ ” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659. Thus, the exceptions to dischargeability reflect a Congressional conclusion that in some instances the creditor’s interest in full repayment outweighs the debtor’s interest in a fresh start, Grogan, 498 U.S. at 287, 111 S.Ct. at 659. Our interpretation of § 523(a)(7) serves this goal by limiting the exception to discharge to those debts resulting from the debtor’s own wrongdoing. We are fortified in our conclusion when we examine how courts have applied § 523(a)(7) to cases outside of debts arising from criminal convictions. Even when courts find that § 523(a)(7) renders non-dischargeable a debt that did not arise from an actual criminal conviction, such nondischargeable debts still arise from the debtor’s own wrongdoing, see, e.g., In re Edwards, 233 B.R. 461, 477 (Bankr.D.Idaho 1999) (civil penalty resulting from, inter alia, debtor’s sale of “gray market” tractors is nondischargeable pursuant to § 523(a)(7)); In re Lee, 222 B.R. 32, 34-35 (Bankr.W.D.N.Y.1998) (contempt award resulting from debtor’s failure to abide by stipulation with state agency to settle environmental charges is nondischargeable pursuant to § 523(a)(7)); In re Carlson, 202 B.R. 946, 950-51 (Bankr.N.D.Ill.1996) (costs assessed against debtor by Attorney Registration and Disciplinary Commission as result of disciplinary hearing which led to debtor’s temporary" }, { "docid": "13043424", "title": "", "text": "v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed.R.Civ.P. 56(e). Once the movant has made a prima facie showing of its right to judgment as a matter of law, the nonmoving party must go beyond the pleadings and demonstrate that there is a material issue of fact which precludes summary judgment. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Martin v. Commercial Union Ins. Co., 935 F.2d 235, 238 (11th Cir.1991). In the case sub judi-ce, the Court will examine the record to determine whether the cross motions provide a sufficient legal basis which would entitle either party to a judgment as a matter of law. Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir.1988); Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991). II. 11 U.S.C. § 523(a)(1) As a general rule, when a debtor seeks Chapter 7 relief, all debts arising prior to the bankruptcy filing will be discharged. See 11 U.S.C. § 727(b). The concept of discharging pre-existing debt forms one of the primary tenets of bankruptcy policy. Indeed, “a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (citations omitted). At the same time, however, a separate equitable policy mandates that any such mechanism for an unencumbered fresh start should only redound to the benefit of those debtors who are indeed unfortunate, yet honest. Id. at 286-87, 111 S.Ct. 654. Through the discharge exceptions set forth in § 523(a), the Bankruptcy Code offers a means of denying those individuals who do not qualify as “honest but unfortunate debtors” the benefits of a fresh start. Id. at 287, 111 S.Ct. 654. Thus, as an exception to the general discharge rule, the Bankruptcy Code provides: (a) A discharge under section 722, 1141, 1228(a)," }, { "docid": "3707222", "title": "", "text": "available, the safety of the Debtor’s neighborhood, the details of the Debtor’s commute to work, the Debt- or’s sentimental ties to the home? Should the Court, for example, instruct the Debt- or that she should have sold the home for a certain price and obtained another property for a certain price before she could be eligible for chapter 7 relief? The Court is not unmindful that the Debtor owns one of the more expensive homes in her county of residence. However, this Court believes that the 707(b) decision requires an analysis of all of the unique factors of each case. The most fundamental goal of the Bankruptcy Code is to relieve an “honest but unfortunate debtor” of his indebtedness, allowing him to make a “fresh start.” Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); In re Haas, 48 F.3d 1153, 1156 (11th Cir.), cert. denied, 515 U.S. 1142, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995); Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994); Murphy & Robinson Inves. Co. v. Cross (Matter of Cross), 666 F.2d 873, 879-80 (5th Cir.1982). See Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[A] central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ But in the same breath that we have invoked this ‘fresh start’ policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debtor.’ ”) (internal quotations and citations omitted). “Those courts which have reviewed the legislative history [of section 707(b) ], have generally concluded that, in seeking to curb ‘substantial abuse,’ Congress meant to deny Chapter 7 relief to the dishonest or non-needy debtor.” Krohn, 886 F.2d at 126. Here, there have been no allegations of dishonesty, and from the totality" }, { "docid": "20393861", "title": "", "text": "1239 (10th Cir.2007). The Supreme Court has certainly acknowledged that a central purpose of the [Bankruptcy] Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. But in the same breath that ... [it] ha[s] invoked this fresh start policy, ... [it] ha[s] been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the honest but unfortunate debtor. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (citation and quotation omitted). “Exceptions to discharge are to be narrowly construed, and because of the fresh start objectives of bankruptcy, doubt is to be resolved in the debtor’s favor.” In re Sandoval, 541 F.3d 997, 1001 (10th Cir.2008) (quotation omitted). Under 11 U.S.C. § 523: (a) A [bankruptcy] discharge ... does not discharge an individual debtor from any debt— (19) that— (A) is for— (i) the violation of any of the Federal securities laws (as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934), any of the State securities laws, or any regulation or order issued under such Federal or State securities laws.... The burden is on the creditor to show a debt is nondischargeable under § 523(a). Grogan, 498 U.S. at 283, 111 S.Ct. 654. “Section 523(a)(19) discharge exceptions are often defined by law external to the Bankruptcy Code.” In re Lichtman, 388 B.R. 396, 409 (Bankr.M.D.Fla. 2008). There is a valid state court judgment against the Debtors, entered to require them to repay profits distributed to them as a result of Schubert’s Ponzi scheme. The only dispute is whether such a judgment qualifies as one “for a violation” of securities laws under § 523(a)(19). The Department argues the state court judgment is “for the violation” of securities laws because the disgorgement was a direct result of Schubert’s violation of securities laws and because the Debtors materially aided in the violation." }, { "docid": "6851447", "title": "", "text": "bankruptcy judge, this court may reverse a decision on those issues only if the Bankruptcy Court abused its discretion. See, e.g., Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 563-64 (7th Cir.1984). III. ANALYSIS Preliminarily, the court notes its awareness of the policy considerations behind Debtors’ argument in favor of the diseharga-bility of Mr. Smith’s debt — i.e., that a primary purpose of the Bankruptcy Code is to provide a fresh start for certain debtors. There are, however, other considerations that Congress has determined will override a debtor’s interest in a fresh start. As the United States Supreme Court recognized in Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991): This Court has certainly acknowledged that a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” But in the same breath that we have invoked this “fresh start” policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the “honest but unfortunate debtor.” The statutory provisions governing non-dischargeability reflect a congressional decision to exclude from the general policy of discharge certain categories of debts— such as child support- Congress evidently concluded that the creditors’ interest in recovering full payment of debts in these categories outweighed the debtors’ interest in a complete fresh start. Id. at 286-87, 111 S.Ct. at 659 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). Situated squarely within the context of these two competing considerations is the issue here presented: Pursuant to 11 U.S.C. § 523(a)(5)(A), was the child support debt owed to Ms. Rayl “assigned to another entity, voluntarily, by operation of law, or otherwise,” thereby becoming dischargeable? The court has found no cases directly on point. However, other jurisdictions have examined related issues, which appear to reach consistent results, and which" }, { "docid": "20393860", "title": "", "text": "enrichment, fraudulent transfer, and equitable lien. The Department later requested summary judgment only on the basis of unjust enrichment. The Oklahoma trial court granted summary judgment requiring Mathews and the Wilcoxes to repay profits of approximately half a million dollars each. The Wilcoxes, but not Mathews, unsuccessfully appealed to the Oklahoma Court of Civil Appeals and subsequently to the Oklahoma Supreme Court, which reversed and remanded for further proceedings. See Okla. Dep’t. Sec. v. Blair et al., 231 P.3d 645, 670 (Okla.2010). Mathews and the Wilcoxes (collectively the Debtors) filed for bankruptcy protection and the Department initiated adverse proceedings to avoid discharge of the judgment debt. The bankruptcy court consolidated the cases and granted summary judgment to the Department, concluding the debts were not dischargeable because they fell under the exception in 11 U.S.C. § 523(a)(19) as judgments for the violation of securities laws. The district court affirmed. The Debtors appeal from the district court’s judgment. II. DISCUSSION We review the bankruptcy court’s interpretation of a statute de novo. In re Troff, 488 F.3d 1237, 1239 (10th Cir.2007). The Supreme Court has certainly acknowledged that a central purpose of the [Bankruptcy] Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. But in the same breath that ... [it] ha[s] invoked this fresh start policy, ... [it] ha[s] been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the honest but unfortunate debtor. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (citation and quotation omitted). “Exceptions to discharge are to be narrowly construed, and because of the fresh start objectives of bankruptcy, doubt is to be resolved in the debtor’s favor.” In re Sandoval, 541 F.3d 997, 1001 (10th Cir.2008) (quotation omitted). Under 11 U.S.C. § 523: (a) A [bankruptcy] discharge ... does not discharge an individual debtor from any debt— (19) that— (A)" }, { "docid": "3099710", "title": "", "text": "II U.S.C. § 523(a). The remedial purpose of the Bankruptcy Code is “to provide a procedure by which insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in fife [and] a clear field for future effort, unhampered by the pressure and discouragement of pre[-]existing debt”. United States v. Fegeley (In re Fegeley), 118 F.3d 979, 982 (3d Cir.1997) (quoting Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991)). This “fresh start” policy applies, however, only to the “honest but unfortunate debtor”. Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659. Bankruptcy is intended to “relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh”. Boston Univer sity v. Mehta (In re Mehta), 310 F.3d 308, 311 (3d Cir.2002). Bankruptcy is not only an “ameliorative right” of the debtor; it also is a remedy for creditors. Id. Protecting creditors under certain circumstances becomes more important than giving a debtor a “fresh start”. Id. Accordingly, a debtor may not be permitted in every instance to “escape all financial obligations” by the mere expedient of bankruptcy. Id. Exceptions to discharge are, however, generally construed “narrowly against the creditor and in favor of the debtor” due to this underlying concern for providing a “fresh start”. Id. A creditor objecting to the discharge of a debt owed to it by a debtor in bankruptcy has the burden of proving, by a preponderance of the evidence, that the debt falls into one of the numerous exceptions found at § 523(a) of the Bankruptcy Code. Grogan, 498 U.S. at 291, 111 S.Ct. at 661. Count I: § 523(a)(2)(A) Plaintiffs assert in Count I of the complaint that debtor falsely and fraudulently represented to them prior to the closing that he intended to continue operating K-Lor as á going concern after the closing when in reality he purchased the business with the intention of immediately reselling it to a third party. Debtor began looking for a buyer for the business only a month after he purchased it from plaintiffs." }, { "docid": "3099709", "title": "", "text": "debtor is excepted from discharge by §§ 523(a)(2), (a)(4) and/or (a)(6). They alternatively seek to have debtor denied a general discharge according to § 727(a)(2). The matter was tried on April 21, 2003, at which time both sides were given an opportunity to present evidence on the issues raised in the case. — DISCUSSION — Objection To Discharge Of Debt Plaintiffs seek a determination in the first three counts of the complaint that the debt owed to them by debtor is excepted from discharge by §§ 523(a)(2)(A), (a)(4) and/or (a)(6), respectively, which provide in part as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt — .... (2) for ... property ... to the extent obtained, by fraud, other than a statement respecting- the debtor’s or an insider’s financial condition;... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;... [and] (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.... II U.S.C. § 523(a). The remedial purpose of the Bankruptcy Code is “to provide a procedure by which insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in fife [and] a clear field for future effort, unhampered by the pressure and discouragement of pre[-]existing debt”. United States v. Fegeley (In re Fegeley), 118 F.3d 979, 982 (3d Cir.1997) (quoting Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991)). This “fresh start” policy applies, however, only to the “honest but unfortunate debtor”. Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659. Bankruptcy is intended to “relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh”. Boston Univer sity v. Mehta (In re Mehta), 310 F.3d 308, 311 (3d Cir.2002). Bankruptcy is not only an “ameliorative right” of the debtor; it also is a remedy for creditors. Id. Protecting creditors under certain circumstances becomes more important than giving a debtor a “fresh start”. Id. Accordingly, a debtor may" }, { "docid": "3774702", "title": "", "text": "of the Debtors’ financial condition and ability to fund plan payments. See In re Hardacre, 338 B.R. 718, 722 (Bankr.N.D.Texas 2006) (“The term ‘projected disposable income’ must be based upon the debtor’s anticipated income during the term of the plan, not merely an average of her prepetition income. This conclusion is buttressed not only by the anomalous results that could occur by strictly adhering to section 101(10A)’s definition of ‘current monthly income,’ but because, taken as a whole, section 1325(b)(1) commands such a construction.”). If a debtor’s circumstances change from the six months preceding bankruptcy to the petition date, then the Court should evaluate the debtor’s past and current financial status to determine disposable income. The Court considers the “broader context” of this dispute of the definition of projected disposable income with the other provisions and principles of the Bankruptcy Code. BAPCPA did not replace the Bankruptcy Code, it amended and added several new provisions. As a result, any analysis must start with the ample statutory interpretation, legislative history (along with stated policies), and case law development from the 1978 Code, unless it is clear that there has been an abrogation. One of the most important policies of the Bankruptcy Code is to provide relief for an “honest but unfortunate debtor,” thereby allowing him to make a “fresh start.” Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); In re Haas, 48 F.3d 1153, 1156 (11th Cir.), cert. denied, 515 U.S. 1142, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995); Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994); Murphy & Robinson Inves. Co. v. Cross (Matter of Cross), 666 F.2d 873, 879-80 (5th Cir.1982). See Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[A] central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.”) (internal citations" }, { "docid": "12670077", "title": "", "text": "case of violation of a contract,” XI Oxford English Dictionary 461 def. 2a (2d ed.1989). Again, the theme of punishment for wrongdoing pervades the definition. With respect to fine, Black’s defines this word only as a verb, to mean “[t]o impose a pecuniary punishment or mulct. To sentence a person convicted of an offense to pay a penalty in money.” Black’s Law Dictionary 632 (6th ed.1990). The Oxford English Dictionary defines fine as “[a] certain sum of money imposed as the penalty for an offence” V Oxford English Dictionary 926 def. 7c. Here, the use of “fine” in § 523(a)(7) can only be an unambiguous reference to a penal measure. We therefore find that § 523(a)(7) includes in series two terms, “fine” and “penalty”, which clearly refer to penal sanctions — and a third, “forfeiture”, which refers generally to any loss of a right, whether or not penal. We must conclude that Congress intended that this more general term be construed in a similar light as the two more specific terms, and we therefore conclude that “forfeiture” as used in § 523(a)(7) refers only to a penal sanction resulting from a party’s wrongdoing, and not more generally to any loss of a right. We observe that this interpretation finds support both under the policy behind bankruptcy law in general and under judicial application of § 523(a)(7). The central purpose of the Bankruptcy Code is “to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debts,” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (internal quotation marks omitted). The Bankruptcy Code limits this “fresh start” “opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debtor.’ ” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659. Thus, the exceptions to dischargeability reflect a Congressional conclusion that in some instances the creditor’s interest in full repayment outweighs the debtor’s interest in a fresh" }, { "docid": "22792395", "title": "", "text": "U.S. 478, 484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990). Thus, Congress’ expansive definition of “debt” applies to each subsection of § 523(a), absent clear intent to the contrary. See Davenport, 495 U.S. at 562-563, 110 S.Ct. at 2133. The 1984 amendment to § 523(a)(2)(A) is ambiguous and, as such, is insufficient to narrow the meaning of “debt” as employed in § 523(a). As noted by the Tenth Circuit, “there is no reason to conclude that the 1984 amendments were anything but technical and cosmetic. We have found no legislative history reflecting that Congress intended to significantly alter the rights and obligations of creditors and debtors governed by this section.” In re Gerlach, 897 F.2d 1048, 1051 n. 2 (10th Cir.1990). We decline to erode past bankruptcy practice by giving effect to ambiguous statutory language absent clear direction from Congress. Davenport, 495 U.S. at 562-563, 110 S.Ct. at 2133; Kelly, 479 U.S. at 47, 107 S.Ct. at 359. Given its “broadest possible definition,” the term “debt” encompasses an award for punitive damages arising from the same conduct as necessitated an award of compensatory damages, notwithstanding the 1984 amendment to § 523(a)(2)(A). Section 523(a)(2)(A), therefore, excepts from discharge that part of a judgment for fraud consisting of punitive damages. This holding comports with the “fresh start” policy of the Bankruptcy Code. While a “central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt[,]’ ... the [Bankruptcy Code] limits the opportunity for a completely new beginning to the ‘honest but unfortunate debtor.’ ” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed.1230 (1934)) (emphasis added); see also Williams v. United States Fidelity & Guar. Co., 236 U.S. 549, 554-55, 35 S.Ct. 289-290, 59 L.Ed. 713 (1915). Punitive damages are imposed upon defendants who are culpable in the extreme," }, { "docid": "22792396", "title": "", "text": "the same conduct as necessitated an award of compensatory damages, notwithstanding the 1984 amendment to § 523(a)(2)(A). Section 523(a)(2)(A), therefore, excepts from discharge that part of a judgment for fraud consisting of punitive damages. This holding comports with the “fresh start” policy of the Bankruptcy Code. While a “central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt[,]’ ... the [Bankruptcy Code] limits the opportunity for a completely new beginning to the ‘honest but unfortunate debtor.’ ” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed.1230 (1934)) (emphasis added); see also Williams v. United States Fidelity & Guar. Co., 236 U.S. 549, 554-55, 35 S.Ct. 289-290, 59 L.Ed. 713 (1915). Punitive damages are imposed upon defendants who are culpable in the extreme, not upon the merely honest but unfortunate. Manley, 135 B.R. at 147. The general policy that exceptions to discharge are to be construed strictly against the creditor and liberally in favor of the debtor likewise applies to honest debtors only. Gerlach, 897 F.2d at 1052; In re Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987); see also In re Dvorak, 118 B.R. 619, 631 (Bankr.N.D.Ill.1990) (finding that Bankruptcy Code’s fresh start policy should have no application to debtor who has committed a nondischargeable act so grievous that after a full trial on the merits the trier of fact finds punitive damages appropriate). While protecting honest debtors, the Bankruptcy Code also seeks to protect creditors whom the debtor has harmed by “egregious conduct.” In re Britton, 950 F.2d 602, 606 (9th Cir.1991). Moreover, the fraud exceptions to discharge exist to punish the debtor for committing fraud. See Birmingham Trust Nat’l Bank, 755 F.2d at 1477. Accordingly, the malefic debtor may not hoist the Bankruptcy Code as protection from the full consequences of fraudulent conduct. Cf. TranSouth" }, { "docid": "22027339", "title": "", "text": "inequitably threatens to provide a windfall at the expense of innocent ex-spouses. In re Straub, 192 B.R. at 528-29. Aside from such considerations, however, failure to take into account the effect of discharge upon the debtor’s “ability to pay” will provide a discharge to many debtors who in fact have the capacity to pay, a result at odds with the general policy that discharge exceptions relating to marital obligations should be construed in favor of nondischargeability. Miller v. Gentry (In re Miller), 55 F.3d 1487, 1489 (10th Cir.1995) (in contrast to the narrow construction generally afforded to discharge exceptions, provisions relating to familial obligations warrant a broad reading). . Certainly, the policy behind section 523(a)(15) demands something more than a shortsighted inquiry which lends itself to such inequitable results. \"[A] central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (citations omitted). At the same time, however, a separate equitable policy mandates that any such mechanism for an unencumbered fresh start only should redound to the benefit of those debtors who are unfortunate, yet honest. Id. at 286-87, 111 S.Ct. at 659. In its currently advancing form, the snap-shot approach will confound this longstanding policy, allowing dishonest debtors to rearrange their affairs and thereby exploit the discharge provision of section 523(a)(15) by structuring an environment in which they do not have the \"ability to pay” the debt in question. . If for no other reason, the Court finds such a broader scope of inquiry to be mandated by the unambiguous maimer in which Congress chose to frame the first prong of section 523(a)(15) in terms of the Debtor's “ability” to pay. See XI U.S.C. § 523(a)(15). As defined by Webster, that term connotes a party’s “physical, mental, financial, or legal power to perform.\" Webster's II New Riverside" }, { "docid": "19287795", "title": "", "text": "of fact and legal precept”, we must “break down” the questions of law and fact and “apply the appropriate standard to each component.” Meridian Bank v. Alten, 958 F.2d 1226, 1229 (3d Cir.l992)(quoting Universal Minerals, 669 F.2d at 102-03, and In re Sharon Steel Corp., 871 F.2d 1217, 1222 (3d Cir.1989)). III. When a debtor files under Chapter 7 of the Bankruptcy Code, the debtor is generally granted a discharge from all debts arising prior to the filing of the bankruptcy petition. 11 U.S.C. § 727(b) (1994); see also In re Birkenstock, 87 F.3d 947, 950 (7th Cir.1996); In re Toti, 24 F.3d 806, 808 (6th Cir.1994). The remedial purpose of the Bankruptcy Code is “to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life [and] a clear field for future effort, unhampered by the pressure and discouragement of pre[-]existing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). However, this “fresh start” policy provided by the Bankruptcy Code applies only to the “honest but unfortunate debtor.” Id. at 286-87, 111 S.Ct. at 659 (quoting Local Loan, 292 U.S. at 244, 54 S.Ct. at 699). The Code excepts certain liabilities from discharge. Section 528(a)(1)(C) provides: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (1) for a tax or a customs duty— (C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax. 11 U.S.C. § 523(a)(1)(C) (1994) (emphasis added). These exceptions to discharge are to be strictly construed in favor of the debtor. Dalton v. I.R.S., 77 F.3d 1297, 1300 (10th Cir.1996). Moreover, “the burden of proving that the debtor’s tax liabilities are nondischargeable under § 523(a)(1)(C) is on the United States.” Berkery v. Commissioner, 192 B.R. 835, 840 (E.D.Pa.1996), aff'd, 111 F.3d 125 (3d Cir.1997)." }, { "docid": "2568629", "title": "", "text": "debtor” of his indebtedness, allowing him to make a financial “fresh start.” Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); In re Haas, 48 F.3d 1153, 1156 (11th Cir.), cert. denied, 515 U.S. 1142, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995); Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994); Murphy & Robinson Inves. Co. v. Cross (Matter of Cross), 666 F.2d 873, 879-80 (5th Cir.1982). The United States Supreme Court has stated: that a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” But in the same breath that we have invoked this “fresh start” policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (internal quotations and citations omitted). This fresh start is primarily accomplished through the discharge of debt. See S. REP. NO. 95-989, at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5793 (section 727 is central to the fresh start policy). Generally, a chapter 7 debtor receives a complete discharge from most prepetition debts pursuant to section 727(b) of the Bankruptcy Code. Nonetheless, “[t]here is no constitutional right to obtain a discharge in bankruptcy ... [It] is a legislatively created benefit .... ” United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Siegel v. Weldon (In re Weldon), 184 B.R. 710, 712 (Bankr.D.S.C.1995) (discharge is not a right, but rather a statutory privilege for honest debtors) (citing Hazelip v. Hor-ridge (In re Horridge), 127 B.R. 798, 799 (S.D.Tex.1991)). For example, Congress has, through section 523 of the Bankruptcy Code, excepted certain debts from discharge. Further, section 727(a) of the Bankruptcy Code may be utilized to deny a discharge to dishonest debtors," }, { "docid": "22027340", "title": "", "text": "pre-existing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (citations omitted). At the same time, however, a separate equitable policy mandates that any such mechanism for an unencumbered fresh start only should redound to the benefit of those debtors who are unfortunate, yet honest. Id. at 286-87, 111 S.Ct. at 659. In its currently advancing form, the snap-shot approach will confound this longstanding policy, allowing dishonest debtors to rearrange their affairs and thereby exploit the discharge provision of section 523(a)(15) by structuring an environment in which they do not have the \"ability to pay” the debt in question. . If for no other reason, the Court finds such a broader scope of inquiry to be mandated by the unambiguous maimer in which Congress chose to frame the first prong of section 523(a)(15) in terms of the Debtor's “ability” to pay. See XI U.S.C. § 523(a)(15). As defined by Webster, that term connotes a party’s “physical, mental, financial, or legal power to perform.\" Webster's II New Riverside University Dictionary 66 (3d ed. 1994) (emphasis added). Given the unambiguous manner in which the legislature qualified its provision by such a reference, and the expansively plain meaning which society affords to the term \"ability,” the Court finds that it must interpret section 523(a)(15)(A) in a manner which considers both his current finances and his potential capacity to pay the debt in question, thereby providing the most accurate gauge of his true \"power to perform.” See Pennsylvania Pub. Welfare Dept. v. Davenport, 495 U.S. 552, 557, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990) (inteipretation of any statutory provision must begin with the plain meaning of its language); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (\"[t]he plain meaning of legislation should be conclusive, except in the ‘rare case [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’ \") (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245," } ]

[ { "docid": "22613944", "title": "", "text": "and novel claim advanced by respondent classes. They assert that given the citizenry’s “right” to be protected from unconstitutional exercises of police power, and the “need for protection from such abuses,” respondents have a right to mandatory equitable relief in some form when those in supervisory positions do not institute steps to reduce the incidence of unconstitutional police misconduct. The scope of federal equity power, it is proposed, should be extended to the fashioning of prophylactic procedures for a state agency designed to minimize this kind of misconduct on the part of a handful of its employees. However, on the facts of this case, not only is this novel claim quite at odds with the settled rule that in federal equity cases “the nature of the violation determines the scope of the remedy,” ibid., but important considerations of federalism are additional factors weighing against it. Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the “special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U. S. 117, 120 (1951), quoted in O’Shea v. Littleton, 414 U. S., at 500. Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words “allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding.” Giles v. Harris, 189 U. S. 475, 486 (1903) (Holmes, J.). Even in an action between private individuals, it has long been held that an injunction is “to be used sparingly, and only in a clear and plain case.” Irwin v. Dixion, 9 How. 10, 33 (1850). When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with “the well-established rule that the Government has traditionally been granted the widest latitude in the 'dispatch of its own internal affairs/ Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961)/’ quoted" } ]

[ { "docid": "13057350", "title": "", "text": "participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Title 42 U.S.C. § 12142 identifies certain practices by public-transportation providers that are considered discriminatory. In particular, it is discriminatory if a public entity that operates a fixed route system purchases a bus that is “not readily accessible to and usable by ... individuals who use wheelchairs.” 42 U.S.C. § 12142(a). Moreover, the ADA deems it discriminatory for a public entity operating a fixed-route system to provide disabled individuals with services that are inferior to those provided to the nondisabled. 42 U.S.C. § 12143(a). The regulations implementing the ADA do not contemplate perfect service for wheelchair-using bus commuters. Under certain circumstances, 49 C.F.R. § 37.163 permits buses with inoperative lifts in this type of service area to remain in service for up to three days after the problem is discovered, and § 37.161(c) establishes that isolated or temporary problems caused by lift malfunctions are not violations of the ADA. A. Denial of an Injunction Although, as discussed below, the district court misstated Plaintiffs burden in establishing entitlement to injunctive relief under the ADA, the court properly denied Plaintiffs request for a permanent injunction. In order to be entitled to an injunction, Plaintiff must make a showing that he faces a real or immediate threat of substantial or irreparable injury. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042 (9th Cir.1999). Moreover, because Plaintiff seeks to enjoin a government agency, “his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs.” Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (citations and internal quotation marks omitted). This “well-established rule” bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury. Hodgers-Durgin, 199 F.3d at 1042-43. In view of these standards, the district court did not abuse its discretion by denying Plaintiffs request for a permanent" }, { "docid": "14297926", "title": "", "text": "in those cases is § 1319(g)(6)(A)(ii), which specifically excludes civil penalties from the scope of permissible private enforcement remedies, but does not preclude other equitable relief. B. Relevant precedent CCC’s argument that 33 U.S.C. § 1319(g)(6)(A)(ii) bars equitable relief is largely grounded in the Supreme Court’s decision in Gwaltney. In that case, the specific question on appeal was whether civil penalties could be sought for wholly past violations of the Clean Water Act. Gwaltney, 484 U.S. at 52, 108 S.Ct. 376. The plaintiffs argued that since the EPA administrator is permitted to pursue civil penalties for past violations under the authority granted her by 33 U.S.C. § 1319, the provision for citizen suits, which has similar statutory language, should be construed in the same manner. Id. at 58, 108 S.Ct. 376. The Court ultimately rejected this argument after a close examination of the statutory language. Id. at 58-59, 108 S.Ct. 376. It first noted that § 1319 (the agency enforcement provision) provides for civil penalties and equitable relief in wholly different sections. Id. at 58, 108 S.Ct. 376. In contrast, [§ 1365(a)] does not authorize civil penalties separately from in-junctive relief; rather, the two forms of relief are referred to in the same subsection, even in the same sentence. The citizen suit provision suggests a connection between injunctive relief and civil penalties that is noticeably absent from the provision authorizing agency enforcement. Id. (internal citations omitted). Contrary to the position taken by CCC in its brief, the Court in Gwaltney did not hold that civil penalties and injunctive remedies are “inextricably intertwined.” The Supreme Court held that a civil penalty may only be sought when the citizen is also seeking injunctive relief. Gwaltney, 484 U.S. at 59, 108 S.Ct. 376. Put another way, the Court held that a civil penalty suit cannot be maintained when the citizen cannot seek an injunction. The issue before us is instead the mirror image of the Supreme Court’s holding: whether a suit seeking injunctive relief can be maintained when the plaintiff cannot seek civil penalties. Both the First and Eighth Circuits have addressed this" }, { "docid": "13057351", "title": "", "text": "A. Denial of an Injunction Although, as discussed below, the district court misstated Plaintiffs burden in establishing entitlement to injunctive relief under the ADA, the court properly denied Plaintiffs request for a permanent injunction. In order to be entitled to an injunction, Plaintiff must make a showing that he faces a real or immediate threat of substantial or irreparable injury. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042 (9th Cir.1999). Moreover, because Plaintiff seeks to enjoin a government agency, “his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs.” Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (citations and internal quotation marks omitted). This “well-established rule” bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury. Hodgers-Durgin, 199 F.3d at 1042-43. In view of these standards, the district court did not abuse its discretion by denying Plaintiffs request for a permanent injunction. Plaintiffs evidence establishes several frustrating, but isolated, instances of malfunctioning lift service on Tri-Met. The evidence also shows that, unfortunately, a few individual Tri-Met operators have not treated passengers as they are required and are trained to do. Under the regulations, these occasional problems do not, without more, establish a violation of the ADA. At most, the evidence shows past violations of the ADA. It does not, however, support an inference that Plaintiff faces a real and immediate threat of continued, future violations of the ADA in the absence of injunctive relief. The FTA report finding Tri-Met in compliance with the ADA for 1999 supports the conclusion that Plaintiff does not face an immediate threat of future ADA violations. TriMet’s practices and procedures for ensuring ADA compliance further show that Plaintiff does not face a threat of immediate irreparable harm without an injunction. Finally, the fact that Tri-Met is a local gpvernmental agency with procedures already in place for monitoring lift performance and ADA compliance militates against a federal court’s mandating substitute procedures of" }, { "docid": "19920850", "title": "", "text": "for the granting of a preliminary injunction, see Rodde, 357 F.3d at 994 (describing test), as well as the heightened standard that applies to mandatory injunctive relief, see Stanley, 13 F.3d at 1320 (stating that, when issuing a mandatory preliminary injunction, the court must find that the “facts and law clearly favor” plaintiffs). Second, in concluding that plaintiffs were entitled to a mandatory preliminary injunction, the district court correctly applied these tests. The court found that plaintiffs had a strong likelihood of success on the merits of their Medicaid Act claims. It also discussed the possibility that plaintiffs would face unnecessary institutionalization without the preliminary injunction, recognized that such harms were “grave,” and rejected defendants’ arguments that plaintiffs failed to show that they faced irreparable harm. It is evident that the court concluded that plaintiffs faced the potential for irreparable injury without the injunction. This is sufficient to meet the general requirement of “probable success on the merits and the possibility of irreparable injury” for preliminary injunctive relief. Rodde, 357 F.3d at 994. The court’s finding of a strong likelihood that plaintiffs would succeed on the merits of their claims also evidences a conclusion that the law and facts clearly favor plaintiffs, meeting the requirement for issuance of a mandatory preliminary injunction. Stanley, 13 F.3d at 1320. Defendants also argue that the district court did not make any explicit findings showing that it considered the federalism principles that require federal courts to grant each state “the widest latitude in the dispatch of its own internal affairs” and to find “a threat of immediate and irreparable harm” before enjoining a state agency’s operations. See Rizzo, 423 U.S. at 378-79, 96 S.Ct. 598; Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir.2001); Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir.1999). The district court, however, did describe plaintiffs’ vulnerability, complex needs, and ongoing “unmet mental health needs and the harms of unnecessary institutionalization.” That description suffices to show that the court found a threat of immediate and irreparable harm to plaintiffs. As for the deference accorded to state agencies in" }, { "docid": "8702985", "title": "", "text": "harm. Defendant argues that Plaintiffs delay in seeking an injunction weighs against a finding of irreparable harm. “Significant delay in applying for injunc-tive relief in a trademark case tends to neutralize any presumption that infringement alone will cause irreparable harm pending trial, and such delay alone may justify denial of a preliminary injunction for trademark infringement.” Blockbuster, 869 F.Supp. at 516 (internal quotation marks and citation omitted). The Court finds, however, that Plaintiff did not delay unreasonably in filing this suit and seeking injunctive relief. Plaintiff has adduced evidence that it did not learn of Defendant’s “MrPolk.com” website until April 18, 2002. {See PI. Reply, Ex. A.) Plaintiff retained counsel in May, 2002, drafted the pleadings for this case in June, 2002, and contacted Defendant in an attempt to resolve the matter in early July, 2002, before filing the complaint and motion for injunctive relief on July 23, 2002. {See PI. Reply at 1, Ex. B.) Plaintiffs three month delay in bringing this action is not unreasonable. See Avent Am., Inc. v. Playtex Prods., Inc., 68 F.Supp.2d 920, 933 (N.D.Ill.1999) (finding that plaintiff did not delay where plaintiff discovered infringing activity in February 1998, filed suit on April 30, 1998 and motion for preliminary injunction on May 5, 1998; noting that plaintiffs attempt to resolve the matter prior to filing suit was “commendable”). 3. Whether Issuance of the Injunction Would Cause Substantial Harm to Others The potential for harm to Defendant and third parties through the issuance of an injunction is outweighed by the potential for irreparable harm to Plaintiff. Defendant asserts that its customers would suffer if the Court were to enjoin Defendant from using the “1-800-ASK-POLK” telephone number and the “[email protected]” email address. Although an injunction likely will result in some temporary inconvenience to Defendant and its customers, Plaintiffs interest in preserving its rights in its mark outweighs this potential for harm. Moreover, the Court notes that Defendant’s rights in the mark “Polk City Directory” will be unaffected by the issuance of an injunction. Thus, an injunction will not prevent Defendant from operating the city directories portion of" }, { "docid": "13769441", "title": "", "text": "not depend solely upon the movant’s “likelihood of success on the merits,” but upon the balancing of all of the pertinent Dataphase factors. See Baker Elec. Co-op., Inc., 28 F.3d at 1472 (“No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance, they weigh towards granting the injunction”) (internal quotation marks and citations omitted). Here, this Dataphase factor is at worst neutral and at best weighs in favor of issuance of a temporary restraining order. 2. Irreparable harm The second Dataphase factor is “irreparable harm.” See, e.g., Dataphase, 640 F.2d at 114. As this court has also explained, “ ‘The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.’ ” Bandag, Inc., 190 F.3d at 926 (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). “Thus, to warrant a preliminary injunction, the moving party must demonstrate a sufficient threat of irreparable harm.” Id.; Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir.1996) (“ ‘[T]he failure to show irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary injunction.’ ”) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.1987)). Various considerations may be relevant to a determination of “irreparable harm.” For example, a movant’s delay in seeking relief or objecting to the actions the movant seeks to enjoin “belies any claim of irreparable injury pending trial.” Hubbard Feeds v. Animal Feed Supplement, 182 F.3d 598, 603 (8th Cir.1999). Moreover, an adequate showing of “irreparable harm” cannot be something that has never been the focus of the underlying lawsuit. See United States v. Green Acres Enters., Inc., 86 F.3d 130, 133 (8th Cir.1996). A sufficient showing on this factor can be made, for example, by showing that the movant has no adequate remedy at law. Baker Elec. Co-op., 28 F.3d at 1473. Conversely, where the movant has an adequate legal remedy, a preliminary injunction will not issue. See Frank B. Hall & Co. v." }, { "docid": "4609402", "title": "", "text": "decisions which result in the commitment of substantial federal resources for a statutory program, which resulted in reallocation of over 225,000 acre feet of CVP water under the ESA for salmon protection with the environmental impacts alleged. This is NEPA major federal action. NEPA REDUNDANCY The government suggests plaintiffs seek simultaneous and redundant NEPA analysis by NMFS and the Bureau. No complainant seeks such relief. 40 C.F.R. § 1501.5 et seq. prescribes the procedure where more than one federal agency is interested in action which requires an EIS by providing a designation of a lead agency, and 40 C.F.R. § 1502.25 calls for integrated preparation of an EIS to the fullest extent possible. See Jones v. Gordon, 792 F.2d 821, 826 (9th Cir.1986). It is left to the agencies to coordinate their EIS efforts. The biological opinion developed by NMFS provides for specific revisions to the procedures and standards for operation of the CVP, which the Bureau was obligated to consider, unless an express exemption was obtained under 16 U.S.C. § 1536(h). Alleged redundancy is not a bar to relief. Under these circumstances, NEPA compliance for a programmatic EIS is not precluded unless it can be shown that the systematic and connected agency decisions for the CVPIA could not be coordinated. Unavoidable Conflict With The Consultation Process. The parties argue extensively over whether an “unavoidable conflict” exists between agency consultation and NEPA compliance, to excuse any EIS requirement under the authority of Flint Ridge, 426 U.S. at 789-90, 96 S.Ct. at 2438-39. Under 16 U.S.C. § 1536(b)(1)(A), consultation “shall be concluded within the 90-day period beginning on the date on which initiated, or ... within such other period of time as is mutually agreeable to the Secretary and the Federal agency.” The Supreme Court has estimated that “draft environmental impact statements on simple projects prepared by experienced personnel take some three to five months to complete, at least in the Department of the Interior. Complex projects prepared by inexperienced personnel may take up to 18 months to prepare.” Flint Ridge, 426 U.S. at 788 n. 10, 96 S.Ct. at 2438" }, { "docid": "23700701", "title": "", "text": "plaintiffs’ access to necessary medical care. C. Redressability In addition to establishing that their injury results from the defendants’ challenged action, plaintiffs must also demonstrate that the requested relief will remedy their injury. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). On this point, the County relies on Simon. There, indigent plaintiffs sued Department of Treasury officials, challenging provisions allowing favorable tax treatment to a non-profit hospital where plaintiffs were denied service. The Court concluded that plaintiffs lacked standing because, due to the attenuated chain of causation, there was no evidence that eliminating the challenged tax break would actually result in the non-profit hospital changing its practices in treating the plaintiffs. Id. The instant case is distinguishable. Plaintiffs here sued the entities that oper ate the hospitals to which plaintiffs seek to retain access. The remedy they seek would directly change what the hospitals would do in the absence of this suit. The County is already struggling to provide basic health care services to its indigent residents, including plaintiffs. While the relief plaintiffs seek will not eliminate all harm caused by delays and insufficient resources, the district court’s order requiring the County to keep Rancho open and maintain all beds currently provided at LAC-USC serves at least to maintain the status quo and to preclude any additional, avoidable harm to plaintiffs. Thus, the specific injuries plaintiffs allege already have been redressed by Judge Cooper’s well-reasoned preliminary injunction order. * * * In sum, the district court did not err in concluding that plaintiffs have standing to pursue this action. First, the individual plaintiffs have chronic health conditions and rely on the county health care system, and specifically on Rancho and LAC-USC, for medical treatment and hospital care. Second, the County’s proposed cutbacks will interfere with plaintiffs’ access to (and decrease the quality and timeliness of) medical care. Finally, the injunctive relief plaintiffs seek (and already have received as a preliminary matter) will remedy that harm. Indeed, it is difficult to imagine individuals with greater personal interests in this matter" }, { "docid": "9285206", "title": "", "text": "to provide complete relief to the plaintiffs.\" Califano v. Yamasaki , 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). This means that broad relief, even relief that benefits non-parties, is sometimes necessary to provide complete relief to the actual plaintiffs. The classic examples of such scenarios are desegregation cases. See, e.g. , Bailey v. Patterson , 323 F.2d 201, 206 (5th Cir. 1963). In those cases, the plaintiffs did \"not seek the right to use those parts of segregated facilities that have been set aside for use by 'whites only.' \" Id. Rather, \"they [sought] the right to use facilities which have been desegregated....\" Id. Accordingly, \"[t]he very nature of the rights [the plaintiffs] [sought] to vindicate require[d] that the decree run to the benefit not only of [the plaintiffs] but also for all persons similarly situated.\" Id. In the same vein, cases suggesting ubiquitous harm, such as federal violations of the Establishment Clause, could also justify a nationwide injunction, because an establishment of religion by the federal government would harm the plaintiffs wherever it was taking place. See generally Decker v. O'Donnell , 661 F.2d 598, 618 (7th Cir. 1980). In those cases, the relief to non-parties could be called a side-effect of the relief given to the plaintiffs. This was the case in International Refugee Assistance Project v. Trump , 857 F.3d 554 (4th Cir. 2017). There, the Fourth Circuit upheld a nationwide injunction on the President's \"travel ban\" because the plaintiffs were \"dispersed throughout the United States,\" there was an interest in ensuring uniform application of immigration laws, and the court concluded the ban \"likely violates the Establishment Clause.\" Id. at 605 ; see also Hawaii v. Trump , 859 F.3d 741, 787-88 (9th Cir. 2017). Without directly addressing the merits of why the injunction should be nationwide, the Supreme Court declined to completely stay the injunction. See Trump v. Int'l Refugee Assistance Project , --- U.S. ----, 137 S.Ct. 2080, 2089, 198 L.Ed.2d 643 (2017). The same need to protect third parties to provide complete relief is not present here. The structure of" }, { "docid": "13057354", "title": "", "text": "irreparable harm). Second, as discussed above, the record does not support a finding that Plaintiff faces an immediate threat of irreparable harm. Finally, a federal court must exercise restraint when a plaintiff seeks to enjoin any non-federal government agency, be it local or state. That Tri-Met is a local governmental entity doesu not, as Plaintiff argues, lighten his burden. See Rizzo, 423 U.S. at 380, 96 S.Ct. 598 (recognizing that the same principles govern when an injunction is sought against an agency of a local government and applying them to a request for an injunction against city officials). In reaching its conclusion, the district court mistakenly suggested that a defendant’s intent is an element of a claim for injunctive relief under the ADA. Citing Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir.1992), the district court stated that Plaintiff was not entitled to injunctive relief in the absence of a “strong factual record, showing an intentional and pervasive pattern of misconduct.” Midgett, 74 F.Supp.2d at 1013. We have never held that a plaintiff must prove an intentional violation of the ADA in order to obtain an injunction mandating compliance with its provisions. To the contrary, we have acknowledged that equitable remedies for violations of the ADA are available regardless of a defendant’s intent. Ferguson v. City of Phoenix, 157 F.3d 668, 674-75 (9th Cir.1998). Nevertheless, it is clear that a plaintiff seeking an injunction against a local or state government must present facts showing a threat of immediate, irreparable harm before a federal court will intervene. Rizzo, 423 U.S. at 377-80, 96 S.Ct. 598; Hodgers-Durgin, 199 F.3d at 1042-44. Because Plaintiff did not establish such a threat on this record, and because the district court relied on that ground as well, the district court did not abuse its discretion by denying a permanent injunction. B. Compensatory Damages Plaintiff argues that the district court erred by ruling against him as a matter of law on his claim for compensatory damages. The district court held that compensatory damages are not available for a violation of the ADA without a" }, { "docid": "23518549", "title": "", "text": "District Court apparently agreed that it was unnecessary to certify the claims for injunctive relief, yet only those claims were certified. Moreover, having certified a Rule 23(b)(2) class for injunctive relief, the Court declined to certify even those monetary claims, notably the statutory damage claims, that Parker claims are incidental to the injunctive relief certified. In short, the District Court gave Parker only what the Court concluded Parker did not need. When deciding the Rule 23(b)(2) issue, the District Court relied on Allison, which was the leading precedent on the issue of predominance analysis at the time the District Court ruled. The Second Circuit, however, has since addressed the standards for evaluating predominance for purposes of Rule 23(b)(2). In Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir.2001), the Second Circuit declined to follow the Allison predominance calculus, observing that it foreclosed Rule 23(b)(2) certification in all actions seeking actual damages “even if the class-wide in-junctive relief is the form of relief in which the plaintiffs are primarily interested.” Id. at 163 (internal quotation marks and citations omitted). Ultimately, the Robinson panel held that, when considering a motion for Rule 23(b)(2) certification of a claim seeking both injunctive relief and non-incidental monetary damages, “a district court must ‘consider[ ] the evidence presented at a class certification hearing and the arguments of counsel,’ and then assess whether (b)(2) certification is appropriate in light of ‘the relative importance of the remedies sought, given all of the facts and circumstances of the case.’ ” Id. at 164 (quoting Hoffman v. Honda of Am. Mfg., Inc., 191 F.R.D. 530, 536 (S.D.Ohio 1999)). Robinson holds that, when making an ad hoc determination, a district court “should, at a minimum, satisfy itself of the following: (1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits. Insignificant or sham requests for injunctive relief should not provide cover for (b)(2)" }, { "docid": "19920851", "title": "", "text": "finding of a strong likelihood that plaintiffs would succeed on the merits of their claims also evidences a conclusion that the law and facts clearly favor plaintiffs, meeting the requirement for issuance of a mandatory preliminary injunction. Stanley, 13 F.3d at 1320. Defendants also argue that the district court did not make any explicit findings showing that it considered the federalism principles that require federal courts to grant each state “the widest latitude in the dispatch of its own internal affairs” and to find “a threat of immediate and irreparable harm” before enjoining a state agency’s operations. See Rizzo, 423 U.S. at 378-79, 96 S.Ct. 598; Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir.2001); Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir.1999). The district court, however, did describe plaintiffs’ vulnerability, complex needs, and ongoing “unmet mental health needs and the harms of unnecessary institutionalization.” That description suffices to show that the court found a threat of immediate and irreparable harm to plaintiffs. As for the deference accorded to state agencies in their internal affairs, the court appropriately allowed defendants an opportunity jointly to develop the remedial plan needed to implement the injunction. No further deference was required; the order itself required only that defendants supply the services that the court found to be required under federal law. It did not mandate detailed or burdensome procedures for compliance. See Clark, 60 F.3d at 604. III. The Medicaid Act The district court’s determination that the EPSDT provisions of the Medicaid Act require the State to provide wraparound and TFC was the foundation for its ruling that plaintiffs have a strong likelihood of success on the merits. Whether the district court correctly interpreted the EPSDT provisions of the Medicaid Act is a question of statutory interpretation that we review de novo. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir.1999). Defendants contend that the district court erred in determining that the EPSDT provisions of the Medicaid Act require the State to provide wraparound and TFC. They argue that, even assuming all" }, { "docid": "19618181", "title": "", "text": "[and] has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.\" Youngstown Sheet , 343 U.S. at 609-10, 72 S.Ct. 863. Here, given the States' clear interest in securing the health and well-being of women residents and limiting their costs for contraceptive services, the balance of the equities weighs in their favor. Defendants will not be substantially prejudiced by a preliminary injunction. If the Final Rules were issued in violation of applicable law, they will have suffered no harm. If Defendants ultimately prevail, then a preliminary injunction will have merely delayed their preferred regulatory outcome. 5. Public Interest \"If a plaintiff proves both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interests favors preliminary relief.\" Issa v. Sch. Dist. of Lancaster , 847 F.3d 121, 143 (3d Cir. 2017) (internal quotation marks omitted). So it proves here. A preliminary injunction is unquestionably in the public interest because it maintains the status quo pending the outcome of this litigation. The Final Rules permit any entity to opt out of coverage after 30 to 60 days' notice to plan members. This litigation will not conclude in that short span. A preliminary injunction will maintain the status quo: those eligible for exemptions or accommodations prior to October 6, 2017 will maintain their status; those with injunctions preventing enforcement of the Contraceptive Mandate will maintain their injunctions; those alleging RFRA violations may pursue \"Judicial Relief;\" and those with coverage will maintain their coverage as well. D. Remedy Before concluding, an additional word is required on the scope of the preliminary injunction to be issued. When the IFRs were initially before this Court, they were enjoined generally, without any specific geographic or temporal limitation. See Pennsylvania , 281 F.Supp.3d at 585. Since then, however, much has been made about the propriety (or impropriety) of so-called nation-wide injunctions. See, e.g. , Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2425, 201 L.Ed.2d 775 (2018)" }, { "docid": "13057353", "title": "", "text": "its own design to address the same issues. Plaintiff argues that the district court erred for three reasons: (1) the district court’s conclusion that he had standing to request an injunction logically required the court to conclude that he had presented sufficient evidence of a threat of future harm; (2) the record establishes continuing, pervasive violations of the ADA sufficient to entitle Plaintiff to injunctive relief; and (3) because Tri-Met is a local governmental agency, it is not entitled to the same judicial deference as a state agency. We are not persuaded by these contentions. This court already has rejected the argument that a determination that a plaintiff has suffered sufficient injury to support standing logically requires the court to conclude that the plaintiff necessarily has demonstrated a sufficient fear of immediate and substantial injury to warrant an injunction. See Hodgers-Durgin, 199 F.3d at 1042 (recognizing that evidence sufficient to support conclusion that a plaintiff faced a likelihood of future harm does not necessarily establish that the plaintiff-faces an immediate threat of sub stantial and irreparable harm). Second, as discussed above, the record does not support a finding that Plaintiff faces an immediate threat of irreparable harm. Finally, a federal court must exercise restraint when a plaintiff seeks to enjoin any non-federal government agency, be it local or state. That Tri-Met is a local governmental entity doesu not, as Plaintiff argues, lighten his burden. See Rizzo, 423 U.S. at 380, 96 S.Ct. 598 (recognizing that the same principles govern when an injunction is sought against an agency of a local government and applying them to a request for an injunction against city officials). In reaching its conclusion, the district court mistakenly suggested that a defendant’s intent is an element of a claim for injunctive relief under the ADA. Citing Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir.1992), the district court stated that Plaintiff was not entitled to injunctive relief in the absence of a “strong factual record, showing an intentional and pervasive pattern of misconduct.” Midgett, 74 F.Supp.2d at 1013. We have never held that a" }, { "docid": "23113663", "title": "", "text": "case: It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.... [T]he distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly. Id. at 349-50, 116 S.Ct. 2174. Noting that only two of the named plaintiffs’ individual claims supported plaintiffs’ argument that illiterate inmates were denied access to the courts, the Court concluded that “[tjhese two instances were a patently inadequate basis for a conclusion of systemwide violation and imposition of systemwide relief.” Id. at 359, 116 S.Ct, 2174. In LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), we affirmed an injunction barring the federal Immigration and Naturalization Service from conducting war-rantless searches of migrant housing. We distinguished Lyons, Rizzo and O’Shea, noting that all three cases involved “prudential limitations circumscribing federal court intervention in state law enforce ment matters.” Id. at 1324. We recognized in LaDuke that “the co-equal branches of the federal government are entitled to ‘the widest latitude in the dispatch of [their] own internal affairs,’ ” id. at 1325 (quoting Rizzo, 423 U.S. at 378-379, 96 S.Ct. 598), but nonetheless found the likelihood of injury sufficient to warrant injunctive relief. See id. at 1330. We need not consider here the degree to which federalism concerns may compel greater caution than separation of powers concerns in considering a request for in-junctive relief. It is sufficient for present purposes to note, following Lewis and La-Duke, that plaintiffs in this suit must satisfy the traditional requirements of equity before they may seek injunctive relief against the Border Patrol. We hold that Mr. Lopez and Ms. Hodg-ers-Durgin have not demonstrated a sufficient likelihood of injury to warrant equitable relief. Mr. Lopez drives between 400 and 500 miles a week and" }, { "docid": "7175424", "title": "", "text": "under the new prison administration. Appellees’ Br. 11. We address these two arguments in turn. II. Defendants argue that Richardson’s class action claims are moot because Richardson failed to move for class certification before he was transferred out of USP Lewisburg. While Richardson, of course, still has standing to seek damages for any past constitutional violations that occurred while he was housed in the SMU program at USP Lewisburg, he must have separate standing for forward-looking, in-junctive relief. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). To determine whether Richardson has standing to seek injunctive relief, we ask whether he can “show that he is likely to suffer future injury from the defendant’s conduct.” McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir. 2012) (internal quotation marks and citations omitted). Typically, “[i]n the class action context, [this] requirement must be satisfied by at least one named plaintiff.” Id. While it is clear that Richardson had standing to seek injunctive relief when he filed his amended complaint (as he was still housed in the SMU program at USP Lewisburg), we must ask whether his claims for injunctive relief are now moot because he is no longer housed there. Generally speaking, a case will become moot “when ... the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (internal citations and quotation marks omitted). Mootness jurisprudence characterizes this as “the personal stake requirement.” Id. The Supreme Court in Geraghty, however, noted that Article III mootness is more “flexible” than other justiciability requirements, especially in the context of class action litigation. Id. at 400, 100 S.Ct. 1202. Indeed, we have recognized that “[i]n the class action context, special mootness rules apply” for determining at what point in time a named plaintiff must still have a personal stake in the litigation to continue seeking to represent a putative class action." }, { "docid": "21827111", "title": "", "text": "GILMAN, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined. McKEAGUE, J. (pp. 450-55), delivered a separate dissenting opinion. OPINION RONALD LEE GILMAN, Circuit Judge. This case arises out of the drinking-water crisis in Flint, Michigan. The Plaintiffs are residents of the City of Flint who represent themselves and seek to represent a class of similarly situated individuals. They allege that they have been harmed since April 2014 by the toxic condition of the Flint water supply. The Plaintiffs filed suit against several City and State officials in the Genesee County Circuit Court, asserting various state-law tort claims. Complete diversity of citizenship is lacking, and no federal question is presented on the face of the complaint. Nevertheless, four of the State officials who are present or former employees of the Michigan Department of Environmental Quality (the MDEQ Defendants) removed the action from the state court to federal court on two grounds. They first invoked the “federal-officer removal” provision under 28 U.S.C. § 1442(a)(1), contending that all of their conduct in question was performed under the supervision and direction of the United States Environmental Protection Agency (the EPA). Second, the MDEQ Defendants contend that the Plaintiffs’ claims necessarily implicate a substantial federal issue that merits federal-question jurisdiction under 28 U.S.C. § 1441. The Plaintiffs objected to removal. They filed a motion seeking to have the district court remand the case back to the state court, which the district court granted. On appeal, the MDEQ Defendants ask us to reverse the remand order. For the reasons set forth below, we instead AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background Prior to April 2014, Flint had obtained its drinking water under contract with the City of Detroit. That month Flint switched its source of drinking water to the Flint River in order to save money. In January 2016, several of the Plaintiffs filed a class-action lawsuit in the Gen-esee County Circuit Court. The complaint alleged state-law claims of gross negligence, fraud, assault and battery, and intentional infliction of emotional distress. According to the complaint, the MDEQ" }, { "docid": "23113660", "title": "", "text": "500, 94 S.Ct. 669. In Rizzo, the Supreme Court again focused on federalism in overturning an injunction that would have revised the internal procedures of the Philadelphia police department to minimize incidents of unconstitutional police misconduct. 423 U.S. at 380-81, 96 S.Ct. 598. Quoting O’Shea,- the Court explained that even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In O’Shea v. Littleton, supra, at 502, 94 S.Ct. 669, we held that “a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized[.]” Rizzo, 423 U.S. at 379-80, 96 S.Ct. 598. Thus, “[w]hen a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with ‘the well-established rule that the Government has traditionally been granted the widest latitude in the “dispatch of its own internal affairs.” ’ ” Id. at 378-79, 96 S.Ct. 598 (quoting Sampson v. Murray, 415 U.S. 61, 83, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quoting Cafeteria and Restaurant Workers Union Local 473 v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961))). In Lyons, O’Shea and Rizzo, the Supreme Court required the plaintiffs to show a likelihood of substantial and immediate irreparable injury in order to give appropriate consideration to the values of federalism. It is not clear from the Supreme Court’s opinions that separation of powers concerns counsel against injunctive relief as strongly as do federalism concerns, but it is at least clear that they are relevant and significant. In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court discussed principles of federalism and separation of powers in essentially one breath, addressing the proper role of the federal courts in relation to the political branches of both state and federal" }, { "docid": "21827148", "title": "", "text": "Removing Defendants are defeated. 42. Plaintiffs’ gross negligence claims depend on a question of federal law, primarily whether these Removing Defendants complied with the SDWA and LCR during their oversight of the Flint water system. There are no alternative theories supporting gross negligence that do not implicate the SDWA and/or LCR, as the Removing Defendants are being sued for carrying out the EPA’s duty, as delegated to Removing Defendants, to ensure that public water systems such as Flint comply with the SDWA and LCR. 44. Whether these and other Defendants violated the SDWA and LCR is disputed. The EPA has admitted that the LCR is ambiguous and subject to different possible interpretations and constructions when applied to this particular situation. 45. There is substantial need for uniform interpretation of the SDWA and LCR as it applies to Flint, and the other 155,000 public water systems subject to the SDWA and LCR, that provide water to almost all Americans across the United States. Id. at ¶¶ 29, 40-42, 44, 45, Page ID 10, 14, 15 (footnotes omitted). In addition, the notice of removal devotes nearly five pages to spelling out the relationship between the MDEQ and the EPA in sharing responsibility for monitoring water quality and enforcing compliance with standards established in the SDWA and its regulations, like the LCR. Id. at 6-10, Page ID 6-10. The following paragraphs are illustrative: 18. The SDWA directs the EPA to promulgate national primary drinking water standards and to regulate public water systems. See 42 U.S.C. § 300f et seq. 19. Specifically, with respect to the regulation of lead and copper, the EPA, in 1991, promulgated national primary drinking water regulations (“NPDWRs”) for controlling lead and copper in public drinking water. 56 Fed. Reg. 26460 (June 7, 1991). These regulations are known as the “Lead and Copper Rule” or “LCR” and are found at 40 C.F.R. §§ 141.80, et seq. 20. The EPA’s LCR applies to public water systems such as the City of Flint. See 40 C.F.R. § 141.80(a). Generally speaking, it requires those water systems to monitor the levels of lead and" }, { "docid": "19337394", "title": "", "text": "Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir.2000). The former stems from the Article III case or controversy requirement; the latter is a function of the traditional limits on the power of federal courts to grant equitable relief. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042, 1044 (9th Cir.1999) (en banc). To determine the likelihood of future harm courts are guided “not only by the defendants’ past conduct but also by the defendants’ avowed future intent.” LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir.1985). Further, when a plaintiff seeks to enjoin a state agency and its officers, the plaintiff must “ ‘contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs.’ ” Midgett v. Tri-County Metro. Transp. Dist. of Oregon, 254 F.3d 846, 850 (9th Cir.2001) (quoting Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)); see also Hodgers-Durgin, 199 F.3d at 1042 (“The Supreme Court has repeatedly cautioned that, absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way.”). 1. Count II: Existing and Future Compacts As to the Governor and future compacts, it is unnecessary to determine whether the plaintiffs satisfy the Article III injury in fact requirement, because even if they did, plaintiffs would still not be entitled to injunctive relief to prevent the approval of additional compacts by the Governor because they have not demonstrated “a threat of immediate and irreparable harm.” Hodgers-Durgin, 199 F.3d at 1042. The plaintiffs argue that there is an immediate threat of future injury because the Governor has already approved sixty-two compacts, the legislature has enacted an expedited approval provision, Cal. Gov’t Code § 12012.25(b), and the Governor would be subject to suit if he failed to negotiate in good faith with a tribe that requests a class III gaming compact. 25 U.S.C. § 2710(d)(7). However, while the plaintiffs contend that as many as twenty tribes have expressed an interest in entering into gaming compacts," } ]

[ { "docid": "2689779", "title": "", "text": "to hold that the complaint was (at least in part) timely filed. DISCUSSION I. Motion to Dismiss for Lack of Subject Matter Jurisdiction The United States has moved, pursuant to RCFC 12(b)(1), to dismiss this action for lack of subject matter jurisdiction. This fundamental defense of power to hear is one which can never be waived and must be considered by the court whenever and however raised. RCFC 12(h)(3). Therefore, defendant alleges that this court is without power to hear and to decide this case because: (1) 28 U.S.C. § 1500 deprives the court of jurisdiction over plaintiffs claim; and (2) the petition is time-barred under 28 U.S.C. § 2501. If either of these arguments is accepted by the court, as well as grounded in law, then the petition must, of course, be dismissed for lack of jurisdiction. Generally, when considering a motion to dismiss, the court will presume all facts alleged in the complaint to be true and correct. Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747 (Fed. Cir.1988); Creppel v. United States, 30 Fed. Cl. 323, 328, affd in part and rev’d in part, 41 F.3d 627 (Fed.Cir.1994). Moreover, and in this connection, these facts must be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Given these presumptions, a party who seeks the exercise of this court’s jurisdiction in his favor must nevertheless allege in his complaint “facts essential to show” that jurisdiction is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178,189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399,404 (1994). A plaintiff in the Court of Federal Claims, therefore, bears the burden of establishing jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 747; Catellus, 31 Fed.Cl. at 405. Mindful of the foregoing standards, we shall now proceed, seriatim, to consider the substance of the grounds of defendant’s motion to dismiss for lack of subject matter jurisdiction. II. Section 1500 (28 U.S.C. § 1500) Defendant’s first ground for" } ]

[ { "docid": "1315726", "title": "", "text": "at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.”), cert. denied, 512 U.S. 1235, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994); Vanalco v. United States, 48 Fed.Cl. at 73 (“If the truth of the alleged jurisdictional facts is challenged in a motion to dismiss, the court may consider relevant evidence to resolve the factual dispute.”). It is appropriate to grant a motion to dismiss under RCFC 12(b)(6) only if it appears “beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Commonwealth Edison Co. v. United States, 56 Fed.Cl. 652, 656 (2003). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491 (1994). The Tucker Act states: The United States Court of Federal Claims shall" }, { "docid": "330264", "title": "", "text": "United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); Gould, Inc. v. United States, 67 F.3d 925, 929-30 (Fed.Cir.1995); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion [to dismiss] must be denied.’ ”); RCS Enterps., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). When deciding on a motion to dismiss based on failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the nonmovant’s favor. See Conley v. Gibson, 355 U.S. at 45-6, 78 S.Ct. 99; Boyle v. United States, 200 F.3d at 1372; Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d at 1167 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)); Hamlet v. United States, 873 F.2d at 1416; Ho v. U.S., 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (2002); Alaska v. United States, 32 Fed.Cl. at 695. If a defendant or the court challenges jurisdiction or plaintiffs’ claim for relief, however, the plaintiffs cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). “A" }, { "docid": "8045006", "title": "", "text": "918 F.2d 160, 161 (Fed.Cir.1990)); see also View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[Cjourts must always look to their jurisdiction, whether the parties raise the issue or not.”). A plaintiff must establish jurisdiction by a preponderance of the evidence. See Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112, 115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001), aff'd, 292 F.3d 1383 (Fed.Cir. 2002); Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [the plaintiff] can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.), reh’g en banc denied (2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consol. Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consol. Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, and reh’g en banc declined (1997); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48" }, { "docid": "8856457", "title": "", "text": "of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112,115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 148 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989), cert. denied, 517 U.S. 1155, 116 S.Ct. 1542, 134 L.Ed.2d 646 (1996); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might" }, { "docid": "11057117", "title": "", "text": "Once jurisdiction is challenged by the court or the opposing party, the plaintiff bears the burden of establishing jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). When construing the pleadings pursuant to a motion to dismiss, the court should not grant the motion unless “ ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.’” Son Broadcasting, Inc. v. United States, 42 Fed.Cl. 532, 537 (1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (alterations in original). Pursuant to RCFC 8(a)(1) and Federal Rule of Civil Procedure 8(a)(1), a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” However, “[d]etermination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997), reh’g denied. “[C]onclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). When deciding on a motion to dismiss based on either lack of subject matter jurisdiction or failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989), cert. denied, 517 U.S. 1155, 116 S.Ct. 1542, 134 L.Ed.2d 646 (1996)." }, { "docid": "1546108", "title": "", "text": "Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998); Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001) (noting that the plaintiff bears the burden of proof on a motion to dismiss for lack of jurisdiction), aff’d, 292 F.3d 1383 (Fed.Cir. 2002); Schweiger Constr. Co. v. United States, 49 Fed.Cl. 188, 205 (2001); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), petition for cert. filed, 71 U.S.L.W. 3505, 123 S.Ct. 1786, 155 L.Ed.2d 666 (U.S. April 21, 2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48" }, { "docid": "8045007", "title": "", "text": "County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.), reh’g en banc denied (2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consol. Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consol. Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, and reh’g en banc declined (1997); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (‘When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion must be denied.’ ”); RCS Enters., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). Pursuant to RCFC 8(a)(1) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” RCFC 8(a)(1). However, “[djetermination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Nevertheless, “conelusory" }, { "docid": "8045005", "title": "", "text": "14, 1999, pursuant to her request, plaintiff was separated from the Public Health Service Commissioned Corps. Plaintiff filed a complaint in this court on May 23, 2005, alleging that she had been constructively and involuntarily discharged from the Commission Corps. Defendant filed a motion to dismiss for lack of jurisdiction, arguing plaintiff’s separation was voluntary and that this court is without jurisdiction to hear cases from uniformed services members who voluntarily separate. DISCUSSION I. Jurisdiction Subject matter jurisdiction may be challenged at any time by the parties, by the court sua sponte, and even on appeal. See Fanning, Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998) (quoting Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.), reh’g denied (1993)); United States v. Newport News Shipbuilding and Dry Dock Co., 933 F.2d 996, 998 n. 1 (Fed.Cir.1991). “In fact, a court has a duty to inquire into its jurisdiction to hear and decide a case.” Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (citing Johannsen v. Pay Less Drug Stores N.W. Inc., 918 F.2d 160, 161 (Fed.Cir.1990)); see also View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[Cjourts must always look to their jurisdiction, whether the parties raise the issue or not.”). A plaintiff must establish jurisdiction by a preponderance of the evidence. See Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112, 115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001), aff'd, 292 F.3d 1383 (Fed.Cir. 2002); Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [the plaintiff] can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief.” Davis v. Monroe" }, { "docid": "1315720", "title": "", "text": "in original). Section 1719 of Title 12, among other provisions, granted the FSLIC authority to carry-out certain steps with respect to a defaulting or ailing insured thrifts including the authority: “[T]o make contracts.” 12 U.S.C. § 1725(c)(3). Defendant’s Motion to Dismiss The defendant has filed a motion to dismiss the plaintiffs’ contractual claims arising out of the Republic and Peoria Savings transaction pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC). The defendant does not make a similar argument with respect to the Galva, Home, and Mutual transaction, stating, “the Government does not dispute that plaintiffs are in privity of contract with respect to such agreement.” Subject matter jurisdiction may be challenged at any time by the parties, by the court sua sponte, even on appeal. Fanning, Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998) (quoting Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.), reh’g denied (1993)); United States v. Newport News Shipbuilding & Dry Dock Co., 933 F.2d 996, 998 n. 1 (Fed.Cir.1991). Once jurisdiction is challenged by the court or the opposing party, the plaintiff bears the burden of establishing jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998); Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001) (noting that the plaintiff bears the burden of proof on a motion to dismiss for lack of jurisdiction), aff'd, 292 F.3d 1383 (Fed.Cir.2002); Schweiger Constr. Co. v. United States, 49 Fed.Cl. 188, 205 (2001); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112, 115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen" }, { "docid": "1546109", "title": "", "text": "should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), petition for cert. filed, 71 U.S.L.W. 3505, 123 S.Ct. 1786, 155 L.Ed.2d 666 (U.S. April 21, 2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the non-movant might prevail, the motion must be denied.’”); RCS Enters., Inc. v. United States, 46 Fed. Cl. 509, 513 (2000). Pursuant to Rule 8(a)(1) of the Rules of the Court of Federal Claims (RCFC) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” RCFC 8(a)(1). However, “[d]e-termination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S." }, { "docid": "1315722", "title": "", "text": "v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed. Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied, Penn Triple S v. United States, — U.S. —, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002), reh’g and reh’g en banc denied (2002), cert. denied, — U.S. —, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion must be denied.’ ”); RCS Enters., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). Pursuant to Rule 8(a)(1) of the Rules of the Court of Federal Claims (RCFC) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint" }, { "docid": "1315725", "title": "", "text": "nonmovant’s favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99; Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002), cert. denied, — U.S. —, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed.Cir.2002); Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1338 (Fed.Cir.2001) (quoting New Valley Corp. v. United States, 119 F.3d at 1580), cert. denied, 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 (2002); Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d at 1167 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Hamlet v. United States, 873 F.2d at 1416; Ho v. United States, 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (Fed.Cir.2002); Alaska v. United States, 32 Fed.Cl. at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings," }, { "docid": "8856461", "title": "", "text": "Montgomery Cent. Sch. Dist. v. United States, 48 F.3d at 1167 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Hamlet v. United States, 873 F.2d at 1416; Ho v. United States, 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (Fed.Cir.2002); Alaska v. United States, 32 Fed.Cl. at 695. If a defendant or the court challenges jurisdiction or the plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.”), cert. denied, 512 U.S. 1235, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994); Vanalco v. United States, 48 Fed.Cl. at 73 (“If the truth of the alleged jurisdictional facts is challenged in a motion to dismiss, the court may consider relevant evidence to resolve the factual dispute.”). It is appropriate to grant a motion to dismiss under RCFC 12(b)(6) only if it appears “beyond doubt that [the plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. at 654, 119 S.Ct. 1661; Perez v. United States, 156 F.3d at 1370; Commonwealth Edison Co. v." }, { "docid": "1315721", "title": "", "text": "Once jurisdiction is challenged by the court or the opposing party, the plaintiff bears the burden of establishing jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998); Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001) (noting that the plaintiff bears the burden of proof on a motion to dismiss for lack of jurisdiction), aff'd, 292 F.3d 1383 (Fed.Cir.2002); Schweiger Constr. Co. v. United States, 49 Fed.Cl. 188, 205 (2001); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112, 115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed. Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied, Penn Triple S v. United States, — U.S. —, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002), reh’g and reh’g en banc denied (2002), cert. denied, — U.S. —, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002)," }, { "docid": "19065731", "title": "", "text": "Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The relevant issue in a motion to dismiss under RCFC 12(b)(1) “‘is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” Patton v. United States, 64 Fed.Cl. 768, 773 (2005) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683). The plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). The court may look at evidence outside of the pleadings in order to determine its jurisdiction over a case. Martinez v. United States, 48 Fed.Cl. 851, 857 (2001) (citing RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed.Cir.1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991)), aff'd in relevant part, 281 F.3d 1376 (Fed.Cir.2002). “Indeed, the court may, and often must, find facts on its own.” Id. If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3). B. Standard of Review under RCFC 12(b)(6) It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.Cir.2002). When considering a motion to dismiss under this rule, “the allegations of the complaint should be construed favorably to the pleader.” Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. “[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is warranted under RCFC 12(b)(6). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)." }, { "docid": "19133069", "title": "", "text": "presume all undisputed factual allegations to be true and must construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The relevant issue in a motion to dismiss under RCFC 12(b)(1) “ ‘is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” Patton v. United States, 64 Fed.Cl. 768, 773 (2005) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683). The plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). The court may look at evidence outside of the pleadings in order to determine its jurisdiction over a case. Martinez v. United States, 48 Fed.Cl. 851, 857 (2001) (citing RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed.Cir.1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991)), aff'd in relevant part, 281 F.3d 1376 (Fed.Cir.2002). “Indeed, the court may, and often must, find facts on its own.” Id. If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3). III. Standard of Review under RCFC 12(b)(6) It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.Cir.2002). When considering a motion to dismiss under this rule, “the allegations of the complaint should be construed favorably to the pleader.” Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. “[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is" }, { "docid": "8856456", "title": "", "text": "on appeal. Fanning, Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998) (quoting Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.), reh’g denied (1993)); United States v. Newport News Shipbuilding & Dry Dock Co., 933 F.2d 996, 998 n. 1 (Fed.Cir.1991). Once jurisdiction is challenged by the court or the opposing party, the plaintiff bears the burden of establishing jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998); Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001) (noting that the plaintiff bears the burden of proof on a motion to dismiss for lack of jurisdiction), aff'd, 292 F.3d 1383 (Fed.Cir.2002); Schweiger Constr. Co., Inc. v. United States, 49 Fed.Cl. 188, 205 (2001); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112,115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 148 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S." }, { "docid": "1546107", "title": "", "text": "and makes it difficult for the trial court to conduct orderly litigation ....’” Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 775-76 (7th Cir.1994) (citations omitted)). See also Merritt v. United States, 267 U.S. 338, 341, 45 S.Ct. 278, 69 L.Ed. 643 (1925) (“The petition may not be so general as to leave the defendant in doubt as to what must be met.”) (citations omitted). Subject matter jurisdiction may be challenged at any time by the parties, by the court sua sponte, even on appeal. Fanning, Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998) (quoting Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.), reh’g denied (1993)); United States v. Newport News Shipbuilding & Dry Dock Co., 933 F.2d 996, 998 n. 1 (Fed.Cir.1991). Once jurisdiction is challenged by the court or the opposing party, the plaintiff bears the burden of establishing jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998); Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001) (noting that the plaintiff bears the burden of proof on a motion to dismiss for lack of jurisdiction), aff’d, 292 F.3d 1383 (Fed.Cir. 2002); Schweiger Constr. Co. v. United States, 49 Fed.Cl. 188, 205 (2001); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court" }, { "docid": "21233595", "title": "", "text": "(Fed.Cir.1990)); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.”). Pursuant to Rule 8(a)(1) of the United States Court of Federal Claims (RCFC) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends....” RCFC 8(a)(1); Fed.R.Civ.P. 8(a)(1). However, “[determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Nevertheless, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998) (“Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.”). When deciding a case based on a lack of subject matter jurisdiction, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed.Cir.2002); Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1338 (Fed.Cir.2001) (quoting New Valley Corp. v. United States, 119 F.3d 1576, 1580 (Fed.Cir.1997)), cert. denied, 535 U.S. 1095, 122 S.Ct. 2290, 152 L.Ed.2d 1049 (2002); Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); Perez v. United States, 156" }, { "docid": "330263", "title": "", "text": "v. United States, 190 F.3d 1372, 1377 (Fed.Cir.1999); Constant v. United States, 929 F.2d 654, 657 (Fed.Cir.) (“Nor is due process violated by a dismissal, even sua sponte, for failure to state a claim____ [N]o additional proceedings could have enabled Constant to prove any set of facts entitling him to prevail on his claim for relief.”), cert. denied, 501 U.S. 1206, 111 S.Ct. 2799, 115 L.Ed.2d 973 (1991); see also Phonometrics, Inc. v. Hospitality Franchise Sys., Inc., 203 F.3d 790, 793-94 (Fed.Cir.2000) (the particular facts of the case did not support a sua sponte dismissal for failure to state a claim). The court should dismiss a case for failure to state a claim only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); Gould, Inc. v. United States, 67 F.3d 925, 929-30 (Fed.Cir.1995); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion [to dismiss] must be denied.’ ”); RCS Enterps., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). When deciding on a motion to dismiss based on failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences" } ]

[ { "docid": "22398602", "title": "", "text": "regulate tribal affairs under the Indian Commerce Clause, Art. 1, § 8, cl. 3. See United States v. Wheeler, supra, at 322-323. This congressional authority and the “semi-independent position” of Indian tribes have given rise to two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. First, the exercise of such authority may be pre-empted by federal law. See, e. g.. Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965); McClanahan v. Arizona State Tax Comm’n, supra. Second, it may unlawfully infringe “on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U. S. 217, 220 (1959). See also Washington v. Yakima Indian Nation, 439 U. S. 463, 502 (1979); Fisher v. District Court, 424 U. S. 382 (1976) (per curiam); Kennedy v. District Court of Montana, 400 U. S. 423 (1971). The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important “backdrop,” McClanahan v. Arizona State Tax Comm’n, supra, at 172, against which vague or ambiguous federal enactments must always be measured. The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law. Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other. The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law. Moe v. Salish & Kootenai Tribes, supra, at" } ]

[ { "docid": "9566451", "title": "", "text": "REA, District Judge. Plaintiffs, members of the Yakama Indian Nation, brought this action to prevent defendants, Washington state officials and officers (the “State”), from applying state truck license and permit fees to members of the Yakama tribe. Plaintiffs claim that the fees violate the right to use public highways granted to the Yakama tribe under the Yakama Treaty. The district court granted summary judgment to the Yakama Indian Nation on the ground that the phrase “in common with,” as used in the Treaty in reference to the highway right, has been construed in Treaty fishing rights cases to bar the State from imposing truck license and permit fees on Yakama Indians. The State appealed. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand. FACTS The individual plaintiffs are Yakama Indians who operate logging trucks to haul logs from tribal timber sales on reservation lands to off-reservation markets. They have been issued traffic citations by defendant traffic officers for failing to pay licensing fees and obtain truck permits, as required by Washington state law. Plaintiffs brought this action against defendants for declaratory relief and damages under 42 U.S.C. § 1983, and for declaratory and injunctive relief to prevent defendants or other similarly situated officers from interfering with plaintiffs’ alleged right under the Treaty to use the state’s highways without having to pay the contested fees. Washington state law requires motor vehicles to be registered, with an accompanying registration fee. Washington further requires trucks to be licensed according to gross weight, with higher weights bearing higher licensing fees. Indian-owned trucks have never been exempt from these fees. The Yakamas claim that the following underlined portion of the 1855 Treaty between the United States government and the Yakama Tribe (“the Treaty”) gives the Yakama Indians the right to haul tribal timber to market over state highways without having to pay the contested fees: And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public" }, { "docid": "3899085", "title": "", "text": "PAEZ, Circuit Judge. The Right to Travel provision of the Yakama Treaty of 1855 secures to Yakama tribal members the right to travel upon the public highways. Applying this treaty provision, the district court dismissed the Government’s indictment charging tribal members Kato and Harry Smiskin (“Smis-kins”) with violations of the federal Contraband Cigarette Trafficking Act (“CCTA”). At issue in this appeal is whether the Government’s basis for maintaining a CCTA prosecution against the Smiskins — their alleged failure to comply with the State of Washington’s requirement that individuals give notice to state officials prior to transporting unstamped cigarettes within the State — violated the Right to Travel provision of the Yakama Treaty. The district court determined that the State’s pre-notification requirement, as applied to Yakama tribal members, did indeed violate the Treaty, and, therefore, that the unstamped cigarettes that the Smiskins allegedly transported could not be considered contraband within the meaning of the CCTA. Finding no legal basis for the Government’s prosecution of the Smiskins under the CCTA, the court dismissed the indictment. The Government timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo legal determinations and applications of law to fact, including the interpretation and application of treaty language. See Cree v. Flores, 157 F.3d 762, 768 (9th Cir.1998) (“Cree II ”); United States v. Washington, 969 F.2d 752, 754 (9th Cir.1992). We hold that the district court did not err in interpreting and applying the Yakama Treaty to dismiss the indictment against the Smis-kins. We affirm. I. Background Defendants Kato and Harry Smiskin are members of the Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”). In June 2004, Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) seized 4,205 cartons of unstamped cigarettes from Harry Smis-kin’s residence, located on the Yakama Indian Reservation. Based on previous investigation and surveillance, ATF Agents suspected the Smiskins of transporting unstamped cigarettes from smoke shops on an Idaho Indian reservation to smoke shops on various Indian reservations in Washington. The Smiskins were indicted on charges of violating the federal Contraband Cigarette Trafficking" }, { "docid": "3899104", "title": "", "text": "the network. See Yakama Indian Nation, 955 F.Supp. at 1238. In sum, we disagree with the Government’s argument that the Yakamas’ treaty right to travel protects only collectively owned or reservation derived goods. C. The “Regulatory” Exception In resolving conflicts between state laws and Indian treaties, the Supreme Court has provided a narrow exception to the inviolability of treaty rights, holding that “pure regulations”—restrictions imposed for a public purpose unrelated to revenue generation—may be validly applied to tribal members, treaty rights notwithstanding. For instance, in addressing the State of Washington’s fishing license fees and the “right to fish” provided by the Yakama Treaty, the Court held that the State retained the “power to impose on Indians equally with others such restrictions of a purely regulatory nature ... as are necessary for the conservation of fish.” Tulee, 315 U.S. at 684, 62 S.Ct. 862 (emphasis added); see also Puyallup Tribe, 391 U.S. at 401 n. 14, 88 S.Ct. 1725 (“As to a ‘regulation’ concerning the time and manner of fishing outside the reservation (as opposed to a ‘tax’), we said that the power of the State was to be measured by whether it was ‘necessary for the conservation of fish.’ ” (quoting Tulee, 315 U.S. at 684, 62 S.Ct. 862)). The Court concluded, however, that the State’s fishing license fees did not fall within this exception, and thus could not be imposed on tribal members, because they were “regulatory as well as revenue producing” and were not indispensable to the regulatory purpose of fish conservation. Tulee, 315 U.S. at 685, 62 S.Ct. 862. As the Court noted, the stated purpose of the licensing act was to generate revenue for “the support of the state government and its existing public institutions.” Id. Similarly here, Washington’s stated purpose for requiring cigarette stamps, and hence for requiring notice before unstamped cigarettes are transported within the State, is to “enforce collection of the tax hereby levied.” Rev.Code Wash. § 82.24.030; see also Baker, 63 F.3d at 1486-87 (discussing in detail the State’s scheme for enforcing cigarette taxes through these requirements). Because the primary purpose of" }, { "docid": "9623509", "title": "", "text": "court found immaterial the fact that the exercise of the Treaty right was off-reservation. Id. The Ninth Circuit’s holding in Settler demonstrates that once the court identifies a Treaty right held by the Yakamas, the tribe should be accorded deference in determining how to exercise that right. Further, the doctrine of tribal sovereignty supports an interpretation which allows the Yakama Indian Nation to regulate non-members’ exercise of the Article III travel right. Although this doctrine cannot serve as an independent claim, it still exists as a “backdrop” against which Indian treaties must be read. McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). Accordingly, the Yakama Nation’s tribal sovereignty allows it to regulate and articulate the boundaries of the Treaty travel right. Although the court interprets the Treaty travel provision as allowing plaintiffs to travel the highways without paying licensing or permitting fees, the court emphasizes that in exercising its nonexclusive right, plaintiffs must still comply with regulations imposed by the state which are designed to preserve and maintain the condition of the-roads. See Tulee, 315 U.S. at 685, 62 S.Ct. at 864 (state could not impose licensing fees on Treaty right to fish but could still impose regulations designed to conserve the resource). Finally, the court notes that compliance with state registration requirements, absent the licensing fee, does not impose upon the Yakama Nation’s sovereign right to regulate the exercise of the right to travel. First, the Yakama Nation presented no evidence .to support that the registration of trucks, in and of itself, infringes upon its tribal sovereignty. Second, the Yakama Nation requires all vehicles to be registered in accordance with Washington law. Therefore, plaintiffs have not shown any infringement upon their right to regulate the exercise of Treaty rights. This issue is likely rendered moot by the tribe’s concession that it does not oppose registration for identification purposes. Nonetheless, Washington, law requiring registration for Indian-owned trucks, absent the licensing and tonnage fees, does not infringe upon the Yakama Nation’s tribal sovereignty. APPORTIONMENT CLAIM Alternatively, plaintiffs argue that even if the" }, { "docid": "9623511", "title": "", "text": "Treaty did not retain the Yakamas’ right to travel the public highways without restriction, the challenged fees are preempted by federal law because they are not pro-rated to account for actual off-reservation travel. See Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), and Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). Plaintiffs argue that any tax levied against on-reservation activities is preempted by federal law and the tribe’s retained Treaty and tribal sovereignty rights. Defendants counter that the fees in question are not the type subject to preemption, and if so, are “practically” tailored to reflect actual off-reservation use of state roads. The parties filed cross-claims for summary judgment prior to trial. They agree that no material issue of fact exists and the court may determine the issue solely as a matter of law. The court reserved ruling on this claim, finding it more appropriate to rule on all claims simultaneously. A Facts The parties do not dispute the facts relevant to this issue, and the court briefly recites them. All trucks involved in this case are operated on the highways at weights that require a monthly license. RCW § 46.16.070. A Yakama Indian who operates a truck both on and off-reservation pays the same monthly license fee regardless of the number of miles driven outside reservation boundaries. The fee is the same for non- Indians and Indians. The owner and operator of the truck are jointly responsible for proper licensing. Without proper licensing, a truck cannot obtain registration under RCW 46.16.010.- Lack of proper registration is a misdemeanor under state law. Id. Additionally, temporary tonnage permits are available for trucks weighing up to 80,000 pounds. RCW § 46.44.095. The permits are issued per day, with a five-day minimum. For logging trucks exceeding certain weights, annual log tolerance permits are also required. RCW § 46.44.047. A Yaka-ma Indian who operates a truck inside and outside of reservation boundaries pays the same permit fee regardless of the miles driven off-reservation. The" }, { "docid": "2393820", "title": "", "text": "TASHIMA, Circuit Judge: Defendants, various Washington State officials (“Defendants”), appeal the district court’s grant of summary judgment in favor of the Yakama Indian Nation and individual Yakama Indians holding that the Treaty with the Yakamas (“Yakama Treaty” or “Treaty”) exempts them from various Washington truck license and overweight permit fees. The Treaty clause in issue assures the Yaka-mas “the right, in common with citizens of the United States, to travel upon all public highways.” Treaty with the Yakamas, Art. Ill, 12 Stat. 951, 953 (1855). We hold that the district court did not err in interpreting the Yakama Treaty as exempting the Yaka-ma Indians from the fees at issue. Accordingly, we affirm the judgment of the district court. I. BACKGROUND A. Factual Background Washington law requires registration and licensing of trucks according to gross weight, higher fees being charged for greater weights. See RCW §§ 46.16.070, 46.16.135 (monthly tonnage licenses), 46.44.095 (temporary tonnage permits). Trucks owned by individual Indians have never been exempt from such license fees. Washington also requires log tolerance permits for certain overweight trucks along with payment of a fee. RCW §§ 46.44.047, 46.44.095 (temporary tonnage permit). Again, individual Indians have never been exempt from such fees. Under Washington law, violations of the weight licensing requirements may result in traffic infractions. RCW §§ 46.16.010, 46.16.135, 46.16.140, 46.16.145. Fees paid to the State of Washington (the “State”) for truck registration, licensing, and log tolerance permits are credited to the state motor fund and used primarily for highway purposes. RCW §§ 46.68.030, 46.68.035. See generally Yakama Indian Nation v. Flores, 955 F.Supp. 1229, 1232-33 (E.D.Wash.1997). •Plaintiff-Intervenor Yakama Indian Nation (the “Yakama Nation” or “Nation”) sells timber from lands held in trust by the United States for its own and its members’ benefit. It enters into timber sales contracts with purchasers who must employ tribal members when possible. Individual Plaintiffs in both consolidated cases operate logging trucks that haul logs from tribal timber sales within reservation lands to off-reservation mills. Cree plaintiff Richard “Kip” Ramsey owns the Tiin-Ma Logging Company (“Tiin-Ma Logging”) and began his logging business in 1978, becoming" }, { "docid": "9623527", "title": "", "text": "first paying-state licensing, and tonnage fees. Testimony of Kip Ramsey; P-54. 15. Plaintiffs Cree and Wheeler have been subjected to significant fines by the defendants because plaintiffs have not purchased licenses and tonnage permits in compliance with the laws of the State. See P-9. Plaintiffs, including the Yakama Nation, contend that the Treaty With the Yakamas of 1855 precludes the state from imposing licensing and tonnage fees against Indian-owned trucks hauling tribal goods to market. 16. Cree plaintiffs and Wheeler Logging, including Kip Ramsey and Delbert Wheeler, intend to comply with all State laws designed to “conserve” the public highways and agree to register their trucks with the State of Washington for identification purposes. Ct. Rec. 294. 17. On June 9, 1855, the United States and fourteen Indian tribes and bands entered into a treaty, the Treaty With the Yakamas (Treaty), 12 Stat. 951 (June 9, 1855, ratified March 8, 1859, proclaimed April 18, 1959). P-1. 18. Article III, paragraph 1 of the Treaty With the Yakamas provides: And provided^ That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with the citizens of the United States, to travel upon all public highways. 19. The Yakamas view the Treaty as a sacred document and place special significance to each part of the Treaty as it provides them with basic rights. Yallup testimony at pp. 9-10; Walker testimony at p. 12. 20. The Treaty With the Yakamas must be construed as the Yakamas would have naturally understood the language, with ambiguous phrases construed in their favor. If the Treaty language is unambiguous, it must be construed in accordance with its plain language, notwithstanding subsequent actions of the parties. 21. Article III, paragraph 1, of the Treaty With the Yakamas, when viewed in its historical context, unambiguously reserves to the Yakamas the right to travel the public highways without restriction. 22. Article III, paragraph 1 of the" }, { "docid": "3899111", "title": "", "text": "notice from tribal members before they transport unstamped cigarettes within the State. The Supreme Court has held, however, that tribal rights may preclude a state “from pursuing the most efficient remedy” to enforce a valid cigarette tax on Indians. See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 514, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). As the Court noted, states have a number of “adequate alternatives” available to enforce taxes on cigarettes sales to non-Indians by tribal members. See id. III. Conclusion In sum, we affirm the district court’s orders denying reconsideration and dismissing the charges against the Smiskins. The Government cannot rely on the State of Washington’s pre-notification requirement as the basis for pursuing a CCTA prosecution against tribal members of the Yakama Nation. The State’s requirement is not purely regulatory in nature and applying it to tribal members would restrict a uniquely important right to travel that the Yakama nation understood both at the time of the treaty and now as critical to the preservation of their culture, economy, and way of life. Therefore, the Smis-kins’ alleged transportation and possession of unstamped cigarettes without providing notice to the State cannot be the basis for prosecution under the CCTA. AFFIRMED. . Article III of the Treaty provides in relevant part: And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways. Treaty with the Yakamas, Art. Ill, 12 Stat. 951, 952-53 (1855) (second emphasis added). . Because we affirm the district court’s order granting the Smiskins’ motion to dismiss, we do not address their alternative argument invoking the rule of lenity. . These facts were presented in exhibits that the parties submitted to the district court, and which the court considered in ruling on the Smiskins' motion to dismiss. . Although states cannot tax" }, { "docid": "9623430", "title": "", "text": "appraisal, clearly runs counter to a tribe’s later claims.” Oregon Dep’t of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774, 105 S.Ct. 3420, 3432, 87 L.Ed.2d 542 (1985) (internal quotes and citations omitted). In other words, if the language of the Treaty—as naturally understood by the Yakamas—is unambiguous, the court need go no further in its analysis. Conversely, if the court finds the language of the Treaty ambiguous, the court must construe such terms in a manner favorable to the Yakamas. Defendants repeatedly argue that plaintiffs bear the burden of proving that the “parties to the Yakama Treaty intended that the Treaty would preempt state highway-user taxes and vehicle registration laws.” State Defendants’ Trial Brief at 7. However, according to the canons of construction recited above, plaintiffs need only show that the Yakamas understood the Treaty language to secure their right to travel on the public highways without restriction, thus precluding state registration requirements and licensing and permitting fees for. Indian-owned vehicles carrying tribal goods to market. The Ninth Circuit similarly discarded defendants’ argument when it remanded this case for trial: The State argues that the Yakamas bear the burden of proving a tax exemption in the Treaty. However, in interpreting a treaty between the United States and an Indian tribe, the court must interpret the treaty “in the sense in which [the treaty] language would naturally be understood by the Indians.” Washington v. Washington Commercial Passenger Fishing Vessel Ass’n (“Fishing Vessel\"), 443 U.S. 658, 675-76, 99 S.Ct. 3055, 3067, 61 L.Ed.2d 823 (internal quotation marks omitted). Treaties are “broadly interpreted]” in the Indians’ favor. Id. Cree, 78 F.3d at 1403. Even so, defendants are partially correct in that the canons of construction do not shift the burden from plaintiffs to defendants for the purpose of showing how the Treaty was understood by the Yakamas. Nevertheless, in construing the Treaty, the court is required to examine the language of Article III, paragraph 1, as such terms were understood by the Yaka-mas. EVIDENCE OF PARTIES’ INTENTIONS In determining the intent of the parties to the Treaty, the court" }, { "docid": "9623417", "title": "", "text": "MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW McDONALD, Senior District Judge. Once again the court must determine whether the Treaty With the Yakamas of 1855 (hereinafter “Treaty”) precludes the State of Washington from imposing licensing and permitting fees on logging trucks owned by the Yakama Indian Nation or its members. At the summary judgment stage of these proceedings, the court ruled in favor of plaintiff-intervenor Yakama Indian Nation after dismissing the claims of the individual plaintiffs. Ct.Rec. 180. The court found that the phrase “in common with,” as interpreted in Treaty fishing cases, applies to the public highways clause of the Treaty, and thus precludes the imposition of truck licensing and permitting fees on Indian-owned trucks. Cree v. Waterbury, 873 F.Supp. 404 (E.D.Wash.1994). The Ninth Circuit reversed, holding that the court must engage in a fact-finding inquiry to discern what the parties to the Treaty intended. Cree v. Waterbury, 78 F.3d 1400 (9th Cir.1996). Accordingly, on November 4,1996, a bench trial commenced in the above-mentioned consolidated actions. Timothy R. Weaver, Cock-rill & Weaver, Yakima, Washington, represented the individual Cree plaintiffs and plaintiff-intervenor Yakama Indian Nation, and Elizabeth F.M. Nason also appeared on behalf of the Yakama Nation. Jack W. Fian-der represented plaintiff Wheeler Logging. Assistant Washington State Attorney General Fronda Woods represented state defendants. SUMMARY The Confederated Tribes and Bands of the Yakama Indian Nation (Yakama Nation) and the individually-named plaintiffs in these consolidated actions brought suit seeking a declaration of their rights under Article III, paragraph 1, of the Treaty with the Yaka-mas, regarding the right of the Yakama Nation and its members to operate vehicles on public highways within Washington state. Specifically, plaintiffs seek a declaration by the court that Article III, paragraph 1, reserves to the Yakama Nation and its members the right to take tribal goods to market over the public highways of Washington state free from state registration requirements and applicable licensing and permitting fees. However, plaintiffs do not oppose truck registration with the State for purposes of identification. Further, plaintiffs do not seek exemption from weight regulations applicable to Indian-owned logging" }, { "docid": "9623520", "title": "", "text": "the fees are applied to Indian-owned trucks driven both on and off-reservation. Therefore, the fees must be prorated to account for actual off-reservation use of the highways by tribal members. Colville, 447 U.S. at 163-64, 100 S.Ct. at 2086. Moreover, the vehicles at issue are Indian-owned logging trucks hauling tribal timber to off-reservation markets. The court finds a distinction between plaintiffs’ trucks and a vehicle that is driven off-reservation for reasons unrelated to on-reservation activities. Here, the vehicles are driven off-reservation to support tribal enterprises conducted within reservation boundaries. As such, the tribe has a special sovereignty interest that might not be present under different circumstances. The court recognizes that its ruling on plaintiffs’ Treaty claim may. render the apportionment issue moot. Nonetheless, the court alternatively finds that under McClanahan and its progeny, Washington’s licensing and permitting fees — as currently structured— cannot be imposed against plaintiffs’ logging trucks. Conclusion Treaties are a country’s contracts. The solemn commitment of great nations, like the given word of good men, should be honored. It should not matter if the erosion of time and the bright glare of hindsight demonstrate that they were extravagant or ill-advised. The promises made at Walla Walla all those years ago were unconditional. They will be so enforced by this court. Upon review of the trial testimony, admitted exhibits, and briefing of the parties, the court finds that Article III, paragraph 1, of the Treaty With the Yakamas unambiguously secures to the Yakama Nation and its members the right to travel the public highways without restriction. Accordingly, IT IS HEREBY ORDERED that Judgment shall be entered in favor of plaintiffs in accordance with the following: 1. Article III, paragraph 1 of the Treaty with the Yakamas of 1855 provides the Yaka-ma Indian Nation with the right to travel on all public highways without being subject to licensing and permitting fees, or registration requirements exacting such fees, related to the exercise of that right while engaged in the transportation of tribal goods. 2. This Treaty right to travel, although secured to the Yakama Indian Nation, can be exercised by" }, { "docid": "12018613", "title": "", "text": "Washington). III. “Federal laws of general applicability are presumed to apply with equal force to Indians,” subject to three exceptions. United States v. Baker, 63 F.3d 1478, 1484 (9th Cir.1995). One exception is that, if a statute of general applicability “is silent on the issue of applicability to Indian tribes,” it will not apply if its application would “ ‘abrogate rights guaranteed by Indian treaties.’ ” Id. (quoting Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir.1985)). Smiskin held that the application of the CCTA, a law of general applicability, violated the right to travel guaranteed by the Yakama Treaty. Smiskin, 487 F.3d at 1266. “The Right to Travel provision of the Yakama Treaty of 1855 secures to Yakama tribal members the right to travel upon the public highways.” Id. at 1262. Like Fiander, the defendants in Smiskin were members of the Yakama Nation who were suspected of transporting unstamped cigarettes from Idaho to smoke shops on Indian reservations in Washington. They were charged with substantive violations of the CCTA by failing to comply with Washington’s requirement to give notice to the liquor control board prior to transporting unstamped cigarettes within the state. The district court held that the pre-notifi-cation requirement violated the Yakama Treaty and dismissed the indictment. On the government’s appeal, we relied on Cree v. Flores, 157 F.3d 762 (9th Cir.1998), which held that the State of Washington’s imposition of fees on truck drivers for Yakama logging companies violated the Yakama Treaty’s guarantee of the “ ‘right to transport goods to market over public highways without payment of fees for that use.’ ” Smiskin, 487 F.3d at 1265 (quoting Cree, 157 F.3d at 769). We cited the finding made in Cree that the parties to the Treaty intended the Yakamas to retain “ ‘the right to travel the public highways without restriction for purposes of hauling goods to market.’ ” Id. at 1266 (quoting Yakama Indian Nation v. Flores, 955 F.Supp. 1229, 1248 (E.D.Wash.1997), aff'd by Cree, 157 F.3d 762). Washington’s pre-notification requirement was a restriction on the right to travel, in violation of" }, { "docid": "9623425", "title": "", "text": "under the truck licensing and permitting laws at issue, because the court lacked subject matter jurisdiction under the Act. Ct.Rec. 133. The court then granted the Yakama Indian Nation’s motion to intervene as a party-plaintiff in both the Cree and Wheeler actions. On November 29,1994, the court issued an order addressing five summary judgment motions. Ct.Rec. 180; Cree v. Waterbury, 873 F.Supp. 404 (E.D.Wash.1994). The court ruled that prior judicial decisions regarding the Yakama Nation’s fishing rights under Article III, paragraph 2, of the Treaty governed the meaning of the language “in common with” contained in the public highways clause, Article III, paragraph 1, of the Treaty. Accordingly, the court ruled that the Yakama Nation and its members retained the right to travel Washington public highways without paying highway-user fees while hauling tribal goods. The court also ruled that the Yakama Nation possessed the authority to regulate the conduct of its members in the exercise of Treaty-reserved travel rights outside of the reservation. Finally, the court found that plaintiffs could not recovery attorneys’ fees under 42 U.S.C. § 1988 because their claims were not cognizable under section 1983. State defendants appealed the court’s ruling on the Treaty interpretation issue. The Ninth Circuit reversed, finding that the court erred in holding as a matter of law “that [the fishing rights cases] defined the term “in common with” to mean that no fees could be charged for the exercise of a Treaty right.” Cree, 78 F.3d at 1403. Instead, the Circuit held that a “factual investigation into the historical context and parties’ intent at the time the Treaty was signed is necessary to determine the precise scope of the highway right.” Id. at 1405. Accordingly, the Ninth Circuit remanded the case to this court for such a factual inquiry. On remand, individual plaintiffs and the Yakama Nation were given leave to amend their complaints. Plaintiffs essentially added three new claims: 1) that the Treaty With the Yakamas preempts vehicle registration requirements under RCW § 46.16.010; 2) that those registration requirements violates the sovereign and Treaty-reserved rights of the Yakama Indian Nation to" }, { "docid": "3899108", "title": "", "text": "tribal sovereignty rights. See, e.g., Baker, 63 F.3d 1478. Because the Yakamas’ treaty right to travel is violated here, we do not reach the second step. The district court’s decision is further supported by the Court’s analysis in Tulee, which did not apply a minimal burden test despite describing the state law as not particularly intrusive. See 315 U.S. at 685, 62 S.Ct. 862 (“Even though this method may be both convenient and, in its general impact fair, it acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve.”). E. Additional Concerns Finally, we agree with the district court that its decision does not pose the dangers suggested by the Government. First, the Government contends that the court’s ruling, if affirmed, would preclude the State of Washington and the federal government from regulating tribal transportation of other “restricted goods,” such as illegal narcotics and “forbidden fruits [and] vegetables.” This concern is unfounded, if not disingenuous. As the Government argued extensively in its brief to this court, and as we discussed above, regulations with a purely regulatory purpose can be applied to Indians, treaty rights notwithstanding. The restricted goods to which the Government refers are regulated for the public safety, not for a revenue generating purpose. Drug laws, for instance, have the stated purpose of protecting the public from the dangers of drug use and the drug trade, and are not intended to generate revenue for the government. To the contrary, cigarettes are generally legal, and unstamped cigarettes are deemed contraband when individuals transport them without providing notice to the State only for the sake of improving the collection of cigarette taxes and increasing State revenues (“fair playing field” arguments aside). Further, we note the more practical response to such concerns, which the Yaka-ma Nation presented in its Amicus Brief: The Yakama Nation is a sovereign nation, with its own government, laws and courts, not a rogue organization or menace to civil order. The Yakama Nation does not and never has asserted that its members have a right under its treaty to traffic in" }, { "docid": "9623510", "title": "", "text": "and maintain the condition of the-roads. See Tulee, 315 U.S. at 685, 62 S.Ct. at 864 (state could not impose licensing fees on Treaty right to fish but could still impose regulations designed to conserve the resource). Finally, the court notes that compliance with state registration requirements, absent the licensing fee, does not impose upon the Yakama Nation’s sovereign right to regulate the exercise of the right to travel. First, the Yakama Nation presented no evidence .to support that the registration of trucks, in and of itself, infringes upon its tribal sovereignty. Second, the Yakama Nation requires all vehicles to be registered in accordance with Washington law. Therefore, plaintiffs have not shown any infringement upon their right to regulate the exercise of Treaty rights. This issue is likely rendered moot by the tribe’s concession that it does not oppose registration for identification purposes. Nonetheless, Washington, law requiring registration for Indian-owned trucks, absent the licensing and tonnage fees, does not infringe upon the Yakama Nation’s tribal sovereignty. APPORTIONMENT CLAIM Alternatively, plaintiffs argue that even if the Treaty did not retain the Yakamas’ right to travel the public highways without restriction, the challenged fees are preempted by federal law because they are not pro-rated to account for actual off-reservation travel. See Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), and Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). Plaintiffs argue that any tax levied against on-reservation activities is preempted by federal law and the tribe’s retained Treaty and tribal sovereignty rights. Defendants counter that the fees in question are not the type subject to preemption, and if so, are “practically” tailored to reflect actual off-reservation use of state roads. The parties filed cross-claims for summary judgment prior to trial. They agree that no material issue of fact exists and the court may determine the issue solely as a matter of law. The court reserved ruling on this claim, finding it more appropriate to rule on all claims simultaneously. A Facts The parties" }, { "docid": "2393822", "title": "", "text": "the first Indian logger to haul tribal timber off-reservation. The remaining Cree plaintiffs are employed as drivers for Tiin-Ma Logging and, with one exception, are enrolled members of the Yakama Nation. In the second consolidated case, Wheeler, Plaintiff-Intervenor Delbert Wheeler is the owner of Plaintiff Wheeler Logging and is an enrolled Yakama Indian who began his operations in 1987. Defendants are state officers authorized to issue traffic citations for violations of State vehicle registration, licensing and permitting statutes. Plaintiffs brought suit after the officers issued traffic citations to Tiin-Ma Logging and Wheeler Logging drivers because their owners had refused to pay applicable tonnage licensing fees and had not obtained log tolerance permits for their trucks. Afterwards, the officers began issuing citations to the drivers for failing to possess proper registration. All of the state enforcement actions challenged in this case occurred outside the boundaries of the Yaka-ma Indian Reservation. B. Procedural Background 1. First Proceedings in the District Court Plaintiffs contend that the Yakama Treaty protects their right to haul tribal timber to off-reservation markets over state highways without restriction; therefore, that the State cannot impose licensing and permitting fees on logging trucks owned by the Nation or its members. They contend that Defendants have deprived them of their rights under the Treaty. Cree Plaintiffs filed suit against the State and several of its officers on July 3, 1989. On June 1, 1991, the district court granted their motion for a preliminary injunction enjoining Defendants from issuing citations to Tiin-Ma Logging or its drivers for violations of the tonnage licenses under RCW § 46.16.070 and the log tolerance permits under RCW § 46.44.047. Wheeler Logging filed suit on September 8, 1992 and the district court subsequently issued a preliminary injunction similar to the Cree injunction. The district court consolidated the cases on March 6,1993. After the court ordered the individual Plaintiffs to show cause why their claims should not be dismissed under the Tax Injunction Act, 28 U.S.C. § 1341, the district court granted the Yakama Nation’s motion to intervene as a party-plaintiff in both the Cree and Wheeler actions." }, { "docid": "9623506", "title": "", "text": "Jurisdiction, Intervention, this court noted that the fees at issue were predominantly revenue-raising rather than regulatory in nature. Ct. Rec. 133. Moreover, it is clear in this ease that the regulatory purpose of these statutes — to discourage overweight travel on the highways — can be accomplished without the imposition of these fees. Indeed, plaintiffs concede that they will remain subject to the weight regulations imposed by the state which are designed to preserve the condition of the highways and will not challenge fines imposed for violations of those regulations. Further, nothing in the record suggests that these fees are “indispensable” to the preservation of the highways. The fees are not regulatory in themselves; rather they merely provide a source of revenue which the state chooses to devote a portion of towards the highway fund. The state could potentially obtain the revenue needed to build and maintain highways from different taxes. Therefore, the fact that the state uses such fees to maintain highways- does not overcome the Yakamas’ retained travel right. TRIBAL SOVEREIGNTY CLAIM Plaintiff Yakama Nation also claims that the State’s registration requirements and licensing and permitting fees impermissibly infringe upon its tribal sovereignty right to regulate tribal members’ exercise of the travel Treaty right. Plaintiffs argue that where a treaty reserve rights outside of reservation boundaries, the tribe has a sovereign right to regulate the exercise of that right by trial members. Defendants counter that plaintiffs fail to show that the State’s off-reservation enforcement of state law substantially burdens the Yakama Nation’s right to self-government. Caselaw clearly establishes that tribal sovereignty, standing alone, does not preclude state jurisdiction over Indian conduct off-reservation. While Indian reservation lands and Indian income from on-reservation activities are generally not subject to the intrusion of state taxing authority, “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); White Mountain Apache Tribe v. Bracker, 448 U.S. 136," }, { "docid": "9623522", "title": "", "text": "its individual members, and any Yakama-owned and operated corporation or business which is tribally licensed. 3. The Yakama Indian Nation has the autonomy to regulate and exercise the Treaty right to travel among tribal members and non-member agents or employees. However, the Yakama Nation’s sovereign right to regulate the exercise of Treaty rights does not preclude state registration for Indian-owned trucks, so long as the licensing and permitting fees are not imposed. 4. The Yakama Indian Nation, its members, any Yakama-owned or operated corporations or business, and any non-members engaged in the exercise of the Yakama Indian Nation’s Treaty right to travel must comply with state regulations designed to preserve and maintain the public roads and highways to the extent that those regulations do not impose a fee or surcharge on the Treaty right. 5. The Yakama Nation, its members, any Yakama-owned or operated corporation or business, must comply with state registration requirements solely for identification purposes to the extent that such requirements do not impose a fee or surcharge on the Treaty right. 6. The state’s registration, licensing, and permitting fees for trucks are not tailored to account for actual off-reservation travel, and therefore are preempted by federal law. Therefore, IT IS FURTHER ORDERED that plaintiffs Motion for Summary Judgment Re: McClanahan, Colville, Moe and Sac and Fox Pre-Emption Issues, Ct.Rec. 274, is GRANTED and defendants’ Motion for Summary Judgment on Apportionment Claim, Ct. Rec. 269, is DENIED. IT IS SO ORDERED. The Clerk is instructed to enter this Order and forward copies to counsel. The Clerk is further instructed to enter an Order of Judgment and forward copies to counsel. APPENDIX I FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Since 1915, Washington has required registration and licensing of trucks according to gross weight, with higher weights bearing higher licensing fees. RCW §§ 46.16.070, 46.16.135. Trucks owned by individual Indians have never been exempt from such license fees. 2. Washington requires log tolerance permits for certain overweight trucks with payment of an accompanying fee. RCW §§ 46.44.047, 46.44.095. Individual Indians have never been exempt from such fees. 3." }, { "docid": "9623512", "title": "", "text": "do not dispute the facts relevant to this issue, and the court briefly recites them. All trucks involved in this case are operated on the highways at weights that require a monthly license. RCW § 46.16.070. A Yakama Indian who operates a truck both on and off-reservation pays the same monthly license fee regardless of the number of miles driven outside reservation boundaries. The fee is the same for non- Indians and Indians. The owner and operator of the truck are jointly responsible for proper licensing. Without proper licensing, a truck cannot obtain registration under RCW 46.16.010.- Lack of proper registration is a misdemeanor under state law. Id. Additionally, temporary tonnage permits are available for trucks weighing up to 80,000 pounds. RCW § 46.44.095. The permits are issued per day, with a five-day minimum. For logging trucks exceeding certain weights, annual log tolerance permits are also required. RCW § 46.44.047. A Yaka-ma Indian who operates a truck inside and outside of reservation boundaries pays the same permit fee regardless of the miles driven off-reservation. The fee is the same for non-Indians and Indians. Fees paid to the State of Washington for truck registration, licensing, and log tolerance permits are credited to the state motor fund and used primarily for highway purposes. RCW §§ 46.68.030, 46.68.035. B. Discussion Plaintiffs argue that levying a tax against on-reservation activities of tribal members, regardless of the nature of the tax, is preempted by federal law, the Yakama treaty, and the Yakama Nation’s' sovereignty rights. Plaintiffs maintain that the licensing and permitting fees essentially tax on-reservation travel because the fees are not tailored to reflect actual off-reservation use. Defendants counter that the challenged license and permitting fees are not subject to preemption, because the fees are not based on the value of the truck. Further, the state argues that even if the fees are subject to preemption, the fees are, in practical application, pro-rated to reflect off-reservation travel. The court agrees with plaintiffs that the proper starting point for this determination is McClanahan v. State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d" }, { "docid": "9623513", "title": "", "text": "fee is the same for non-Indians and Indians. Fees paid to the State of Washington for truck registration, licensing, and log tolerance permits are credited to the state motor fund and used primarily for highway purposes. RCW §§ 46.68.030, 46.68.035. B. Discussion Plaintiffs argue that levying a tax against on-reservation activities of tribal members, regardless of the nature of the tax, is preempted by federal law, the Yakama treaty, and the Yakama Nation’s' sovereignty rights. Plaintiffs maintain that the licensing and permitting fees essentially tax on-reservation travel because the fees are not tailored to reflect actual off-reservation use. Defendants counter that the challenged license and permitting fees are not subject to preemption, because the fees are not based on the value of the truck. Further, the state argues that even if the fees are subject to preemption, the fees are, in practical application, pro-rated to reflect off-reservation travel. The court agrees with plaintiffs that the proper starting point for this determination is McClanahan v. State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). In McClanahan, the issue was whether Arizona could apply an income tax to reservation Indians whose income “derived wholly from reservation sources.” 411 U.S. at 165, 93 S.Ct. at 1259. The Court first reiterated the policy that Indians should remain free from state jurisdiction and control within their political boundaries. Id. at 168, 93 S.Ct. at 1260. However, the Court noted: the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption. The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. Id. at 172, 93 S.Ct. at 1262. Nevertheless, the Court found that the principle of tribal sovereignty remained relevant, “because it provides a backdrop against which the applicable-treaties and federal statutes must be read.” Id. The Court further observed that the tradition of Indian sovereignty, combined with the canons of construction applicable to treaties, lead to the" } ]

[ { "docid": "23175609", "title": "", "text": "the filing of the report any party may serve written objections thereto upon the other parties; and that the court after hearing may adopt the report, may modify it, may reject it in whole or in part, may receive further evidence, or may recommit the matter with instructions. It is thus clear that the report of the commission in a case of this kind shall be dealt with in the same manner as that of a master appointed under Rule 53. It is historic practice of long standing to call to the assistance of courts masr ters to pass upon certain classes of questions, one of the most common being the amount of damages. While the report of a master is essentially advisory In nature, it has not been the practice to disturb his findings when they are properly based upon evidence, unless there be errors of law. And prior to the adoption of the rules of civil procedure a party did not have the absolute right to demand that the court redetermine the facts thus found. Under the plain language of Rule 53, it is the duty of the court to accept the findings of fact made by a master unless they are clearly erroneous. But the findings of a master may be modified in part, or rejected in toto, if they are clearly erroneous. In like manner, under the equally clear language of Rule 71A(h), the findings and awards of a commission shall be accepted unless they are clearly erroneous. But they may be modified in part, or rej ected in toto, if they are clearly erroneous. And even though there is evidence to sustain findings of a master or a commission, as the case may be, they are clearly erroneous if the reviewing court on the entire evidence has the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; United States v. Oregon State Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 96 L.Ed. 978. Upon review, it" } ]

[ { "docid": "6233758", "title": "", "text": "all of the affidavits, certifications, and briefs submitted on this matter. This court also held two hearings in which it had an opportunity to hear testimony from various witnesses. Furthermore, this court has scrupulously reviewed the Special Masters’ Report and Recommendation. Based on this extensive review of the record, and in view of the sensitive nature of this litigation, this court is compelled to disqualify Ms. Silver as the plaintiffs’ counsel in this case. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 53(e) specifies that in non-jury actions which have been referred to a special master, the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. Pursuant to this rule, it is well established that a special master’s findings of fact will not be disturbed unless they are clearly erroneous. A finding of fact is clearly erroneous “ ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Dome Petroleum Ltd. v. Employers Mut Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990) (reviewing decision of United States Magistrate) (quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). However, a court must review a special master’s conclusions of law under the de novo standard. See Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir.1992). III. BACKGROUND The approximate inmate population at the Essex County Jail Annex in North Caldwell, New Jersey is between 1,300 and 1,400. The approximate number of corrections officers on duty at any given" }, { "docid": "1017827", "title": "", "text": "with obviousness, however, its argument is partly based on fabric sample exhibits of Burlington and Lesley which the district court specifically rejected as prior art. No assertion is made that the district court erred in those conclusions, nor is any type of explanation put forth as to why the exhibits should be considered by this court. Accordingly, these exhibits are not discussed herein. IV. . The issue of appellate review of a decision of a district court which rejects findings of a master before whom the case was tried is one of first impression in this court. Milliken would have us review the master’s reports directly; Dan River would have us review the district court only. The parties agree that courts of appeals which have addressed this issue have espoused conflicting views. Milliken relies on decisions of the Second, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits; Dan River on the Fourth, Fifth and Eighth. We conclude that the position of neither party correctly defines the role of this court. Dan River asserts, “the District Judge was in as good position as the Master to extract findings from the wealth of material in the record. In such cases the district judge may evaluate the evidence independently and is free to reach a conclusion contrary to that of the Special Master.” In our view, this premise is erroneous. The role of the district court vis-a-vis a master is set forth in Fed.R.Civ.P. 53(e)(2), which provides: In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions." }, { "docid": "5067311", "title": "", "text": "testimony and heard argument, this Court will now address the adoption of the Master’s Report and the motion for contempt with respect to defendants’ noncompliance with paragraphs 5(a) and 5(c). The remaining issues raised in the Master’s Compliance Report will be addressed in a further hearing on April 17, 1978. I. Findings of Fact Fed.R.Civ.P. 53 directs a court in its treatment of a master’s report. Rule 53(e)(2) states: In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties . . . The court after hearing may adopt the report or may modify it in whole or in part or may receive further evidence or may recommit it with instructions. While defendants filed no written objections, they proffered objections and testimony in the March 17th hearing. Defendants did not object to the Master’s findings with regard to their failure to reclassify more than 37 inmates by February 10th. They did not offer evidence showing that they could not comply, did not know how to comply, or lacked resources to comply. They did, however, offer testimony in order to show that they had made good faith efforts to achieve compliance. This evidence focussed primarily on the efforts of the Governor’s Implementation Team from August to December, when it ceased to function. We find this evidence tangential in response to the Master’s Report. While the defendants demonstrated that the Gover nor’s Implementation Team responded with energy and dedication, they leave an unexplained hiatus between their energy and the uncontroverted facts detailed below, that the Implementation Team’s efforts failed to achieve compliance. We therefore accept the Master’s Report as not clearly erroneous and, in fact, upon review of the testimony, we find it has ample support. Based upon the Master’s Report, the evidence adduced in his hearing and the evidence presented to this Court at the March 17 hearing, we find the following: 1. The Governor of" }, { "docid": "22318497", "title": "", "text": "suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. “(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. “(C) 'the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. “Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. “(2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. “(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United" }, { "docid": "4621709", "title": "", "text": "the effective date of the Chandler Act and of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Under the terms of present General Order 37, 11 U.S.C.A. following section 53, the Federal Rules of Civil Procedure relating to special masters is now applicable to all matters pertaining to the appointment and powers of and the proceedings before such masters where not inconsistent with the act or the general orders. Rule 53 (e) should be read with General Order 47, and if this is done, no inconsistency appears. General Order 47 provides : “Unless otherwise directed in the order of reference the report of a referee or of a special master shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions”. Rule 53 (e) (2) provides that: “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous”. Prior to the effective date of Rule 53 in bankruptcy cases, the effect to be accorded a special master’s findings of fact by a court was precisely the same as stated in Rule 53. Then, as now, the special master’s report was advisory only, in contrast to the referee’s power to make a binding order unless reversed on review. The report of the special master is.of no effect until confirmed by the judge and is therefore said by the cases to be “advisory only” or “merely advisory”. Although advisory in the sense that it needs confirmation, the master’s findings of fact are presumptively correct and should be adopted by the court unless shown to be clearly erroneous., In this case the special master has had an opportunity to hear and see the witnesses. His findings will be reversed only when this court is satisfied that error has been committed. I am not satisfied that there" }, { "docid": "2144900", "title": "", "text": "district court for a “de novo” review of the record for at least those objections set forth by the parties and for further proceedings consistent herewith. . The relevant portions of the amended section 636(b) are as follows: (b)(1) Notwithstanding any provision of law to the contrary— ****** (B) a judge may ... designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subpara-graph (a), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. 28 U.S.C. § 636(b). . \"An overriding concern in this area is that ‘since the master’s findings must be accepted unless they are clearly erroneous, [the reference of a nonjury case] involves the danger that the master, not the" }, { "docid": "1256145", "title": "", "text": "The independent monitoring unit was instituted with the proviso that the office of the special master would be reinstated if the Department of Health and Human Resources was not prepared to begin self-monitoring at the end of the nine-month period allotted to the unit. . Fed.R.Civ.P. 53(e) provides, in pertinent part: The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. In an action to be tried without a jury the court shall accept the master’s finding of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice.... The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. .The court’s order of reference in part provides: The Master shall also have the authority to make formal written recommendations with regard to implementation of any aspect of the Principal Order. Such formal recommendations shall specify in detail the steps defendant should take and a timetable for completion of such steps. Copies of each formal recommendation ... shall be accompanied by findings of fact, filed with the Court, and served upon counsel for the parties. A recommendation shall be binding unless within ten (10) business days any party files an objection with the Special Master and requests a hearing ... The Court retains the authority to reject or modify any recommendation by the Master regardless of whether any party has filed an objection. Hearings on objections shall be held before the Special Master at the earliest convenient time. Each party shall have the right to present evidence of a documentary and testamentary nature, and to cross-examine adverse witnesses. The Master shall make" }, { "docid": "23170780", "title": "", "text": "dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including eviden- tiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in sub-paragraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. (3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. (4) Each district court shall establish rules pursuant to which the magistrates shall discharge their duties. . Rule 53 (b) Reference. A reference to a master shall be the exception and" }, { "docid": "6233757", "title": "", "text": "find that Ms. Silver did not violate those rules. The defendants opposed the plaintiffs’ request for an affirmative finding that Ms. Silver did not violate RPC 4.1 and RPC 8.4. In addition, the defendants renewed their arguments in support of the motion to disqualify Ms. Silver. After reviewing the Report and Recommendation, as well as the entire record relied upon by the Special Masters in deciding the motion, this court held a hearing on April 17 and 18, 1997 pursuant to Federal Rule of Civil Procedure 63(e) to determine whether to accept, reverse, accept in part, or reverse in part the Special Masters’ recommendation. Subsequent to the April, 1997 hearing, the defendants filed supplemental papers, in which they apprised the court of another incident in which Ms. Silver allegedly breached security measures at the jail facilities. After another round of briefing was permitted as to whether and in what manner this latest incident affected the disqualification motion, this court held another hearing on March 31, 1998 to address the issue. This court has carefully reviewed all of the affidavits, certifications, and briefs submitted on this matter. This court also held two hearings in which it had an opportunity to hear testimony from various witnesses. Furthermore, this court has scrupulously reviewed the Special Masters’ Report and Recommendation. Based on this extensive review of the record, and in view of the sensitive nature of this litigation, this court is compelled to disqualify Ms. Silver as the plaintiffs’ counsel in this case. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 53(e) specifies that in non-jury actions which have been referred to a special master, the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it" }, { "docid": "1409489", "title": "", "text": "in the sense that in the exercise of the jurisdiction conferred upon it by the act, it applies the principles and rules of equity jurisprudence. [Case cited.]” 3. The District Court and This Court Should Accept the Referee’s Findings Unless They Are “Clearly Erroneous”. General Order in Bankruptcy No. 47, 11 U.S.C.A. following section 53, reads as follows: “Unless otherwise directed in the order of. reference the' report of a referee or of.a special master shall. •set forth his findings of fact and ..conclusions of law, and the judge shall accept■ his findings of fact urn-less clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” [Emphasis supplied.] In Earhart v. Callan, 9 Cir., 1955, 221 F.2d 160, 164, certiorari denied, 1955, 350 U.S. 829, 76 S.Ct. 59, we said: “The scope of review which the District Court and this court affords to orders of a referee in bankruptcy is governed by the General Orders in. Bankruptcy. * * * These Orders, as implemented by Rules 52(a)..and 53(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., require the District Court to accept the referee's findings unless clearly erroneous. [Cases cited.] Similarly, this court may not set aside the findings of the referee unless they are clearly erroneous. [Cases cited.]” 4. Creditors Are Frequently Shortsighted and Careless in the Appointment Of a Trustee. Sharp warning that creditors are “apt” to be shortsighted and careless in the selection of a trustee is contained in 2 Remington on Bankruptcy Sec. 1094, pages 631-632: “The importance of the right choice of trustee cannot be overestimated. In him, administrative power is centered. If an able, vigorous, and independent trustee is appointed, the administration is likely to.be equally able, vigorous, and independent. If one is appointed, however, who is indolent, easy-going, or subject to influence, there are bound to supervene jobberies, inefficiencies, and rascalities. Eternal vigilance is the price of keeping bankruptcy administration free from fraud and machinations. •»**** “The present" }, { "docid": "5067310", "title": "", "text": "appear before it on March 17, 1978, for two purposes: 1) To determine whether any of the findings of fact in the Master’s Compliance Report of February 10, 1978 to which the defendants object are clearly erroneous, as provided by Rule 53(e)(2) of the Federal Rules of Civil Procedure; and 2) To hear oral argument on the plaintiffs’ Motion for an Order to Show Cause why the Defendants Should not be Held in Contempt for Failure to Comply with Paragraph 5(a)(c) of the Court’s August 10, 1977 Order. In preparing their testimony concerning any objections to the Master’s report, the parties should be mindful that the usual rules of evidence will be applied and that the standard by which the Master’s report will be judged is that of “clearly erroneous.” Any evidence that was not presented to the Master will be admitted only upon a showing that the party offering it lacked a reasonable opportunity to offer the evidence at the hearing held by the Master on this subject on February 6, 1978. Having taken testimony and heard argument, this Court will now address the adoption of the Master’s Report and the motion for contempt with respect to defendants’ noncompliance with paragraphs 5(a) and 5(c). The remaining issues raised in the Master’s Compliance Report will be addressed in a further hearing on April 17, 1978. I. Findings of Fact Fed.R.Civ.P. 53 directs a court in its treatment of a master’s report. Rule 53(e)(2) states: In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties . . . The court after hearing may adopt the report or may modify it in whole or in part or may receive further evidence or may recommit it with instructions. While defendants filed no written objections, they proffered objections and testimony in the March 17th hearing. Defendants did not object to the Master’s findings with regard to their failure" }, { "docid": "17352115", "title": "", "text": "be reheard). . Fed.R.Civil Proc. 53(e) in part provides as follows: (e) Report. (1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. (2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. Rule 53(e)(4) provides that the effect of a master’s report is the same whether or not the parties have consented to the reference. The parties may stipulate that a master’s findings of fact shall be final. . In this case, we note that the parties had no opportunity to object to a master’s findings because the case was not referred to another successor master. In effect, the parties lost the opportunity to object to a master's report as well as their opportunity to have the facts found by the same judge who heard the evidence. The parties, of course, may consent to the taking of evidence before a master and to the decision being rendered on the basis of this transcript; however, the parties did not consent to such a procedure in this case. See U.S. v. Southerly Portion of Bodie Island, 19" }, { "docid": "12277642", "title": "", "text": "in the evidence. It was the purpose of the rule, where there is a trial without a jury, to place ultimate responsibility for the findings of fact upon the judge. Where there has been a reference to a master, the master’s findings are entitled to special weight because he has seen and heard the witnesses but they are not given the effect of a verdict by a jury. The language of the rule is that the court shall accept the master’s findings unless clearly erroneous. This is manifestly a guide to be followed in the exercise of the discretion vested in the District Judge, not a limitation upon his power. The rule applicable is well stated by Judge Bratton, speaking for the Court of Appeals of the Tenth Circuit in United States v. Waymire, 10 Cir., 202 F.2d 550, 553, as follows: “Under the plain language of Rule 53, it is the duty of the court to accept the findings of fact made by a master unless they are clearly erroneous. But the findings of a master may be modified in part, or rejected in toto, if they are clearly erroneous. In like manner, under the equally clear language of Rule 71A (h), the findings and awards of a commission shall be accepted unless they are clearly erroneous. But they may be modified in part, or rejected in toto, if they are clearly erroneous. And even though there is evidence to sustain findings of a master or a commission, as the case may be, they are clearly erroneous if the reviewing court on the entire evidence has the definite and firm conviction that a mistake has been committed.” We review the District Judge, not the commissioners; and under Rule 52(a) we may not set aside his findings unless they are clearly erroneous. When he has set aside the findings of a master or commissioners, we must give consideration to the fact that they saw and heard the witnesses and that he did not, and we must pass upon his findings with this in mind; but, unless we can then say" }, { "docid": "1017828", "title": "", "text": "Judge was in as good position as the Master to extract findings from the wealth of material in the record. In such cases the district judge may evaluate the evidence independently and is free to reach a conclusion contrary to that of the Special Master.” In our view, this premise is erroneous. The role of the district court vis-a-vis a master is set forth in Fed.R.Civ.P. 53(e)(2), which provides: In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. (Emphasis added). Dan River’s position would eliminate the first sentence of Rule 53(e)(2) from our consideration in determining the propriety of the district court decision. In effect, Dan River argues that the district court conducts a trial de novo on the record. Clearly this is wrong, and it is not the role assumed by the district court in this case. Chief Judge Turk reviewed the master’s findings as an appellate tribunal under the typical restraints imposed by the “clearly erroneous” rule. Milliken, on the other hand, would have us wholly ignore the role of the district court in the appellate process. We cannot agree with this alternative position. We review the judgment of the district court and its underlying findings and conclusions. In reviewing any factual findings adopted or made by the district court, we must comply with Rule 52(a). However, the decision of the district court holding a finding of fact by the master clearly erroneous is not itself a “finding of fact”, and our review of that decision is, thus, not controlled by" }, { "docid": "23175608", "title": "", "text": "(c) of Rule 53 ; that proceedings before the commission shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53; and that the findings and report of the commission shall have the effect and be dealt with by the court in accordance with the practice prescribed in paragraph (2) of subdivision (e) of Rule 53. Subdivision (c) of Rule 53 relates to the attendance of witnesses before the master, the production of books, records, documents, and other writings; the examination of witnesses; the ruling upon the admissibility of evidence; and the making of a record of the evidence offered and excluded. Subdivision (d) concerns itself with the fixing of the time and place of the hearing before the master, and the manner in which the hearing shall be conducted. And paragraph (2) of subdivision (e) provides that in an action to be tried without a jury the court shall accept the master’s findings of fact tinless clearly erroneous; that within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties; and that the court after hearing may adopt the report, may modify it, may reject it in whole or in part, may receive further evidence, or may recommit the matter with instructions. It is thus clear that the report of the commission in a case of this kind shall be dealt with in the same manner as that of a master appointed under Rule 53. It is historic practice of long standing to call to the assistance of courts masr ters to pass upon certain classes of questions, one of the most common being the amount of damages. While the report of a master is essentially advisory In nature, it has not been the practice to disturb his findings when they are properly based upon evidence, unless there be errors of law. And prior to the adoption of the rules of civil procedure a party did not have the absolute right to demand that the court redetermine the facts" }, { "docid": "22405908", "title": "", "text": "Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing. (2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. (3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report. . We reject TDC’s suggestion that rule 53 does not permit the post-decretal appointment of a special master. Although rule 53 is concerned primarily with the appointment of a special master “as a factfinder in advance of the court’s remedial decree or as an expert to recommend the amount of damages or other remedial relief after a finding of liability,” Nathan, The Use of Masters in Institutional Reform Litigation, 10 Tol.L.Rev. 419, 428 (1979) (emphasis added), we have" }, { "docid": "19993741", "title": "", "text": "rejected these findings and, concluding that Rohde had established a prima facie case which K. 0. had failed to rebut, entered judgment in favor of Rohde. K. 0. mounts a two-pronged attack on this judgment. First, it contends that the district court erred in determining that the findings of the magistrate were “clearly erroneous,” and that it did not accord proper deference to those findings; secondly, it asserts that the court erred in its definition of “similarly situated” under Title VII, and in holding that these two employees were so situated. We find both arguments to be without merit, and affirm. The parties have devoted a considerable portion of their briefs and argument to the question of the standard of review. Indeed, on the procedural history of this case, the question is not without difficulty. The dispute centers on whether we apply the “clearly erroneous” standard to the findings of the magistrate, who found that Rohde was not discriminated against under 42 U.S.C. § 2000e, or to the conclusion of the district court that she was. Fed.R.Civ.P. 53 governs references to a master, whether it be to “a referee, an auditor, an examiner, a commissioner, [or] an assessor.” Subsection (e)(2) of that rule governs the effect of the master’s findings: “in an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous... The court after hearing may adopt the report or modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” The district court, in its opinion rejecting the magistrate’s recommendation, recognized that it was “bound by the clearly erroneous standard. . .” Once the master’s recommendation is accepted or rejected, however, what standard must be applied by the Court of Appeals? It is uniformly held that to the extent that a district court accepts the master’s findings, they become the findings of the district court, and cannot be set aside in the Court of Appeals unless clearly erroneous. See Fed.R.Civ.P. 52(a); Coen v. Zick, 458 F.2d 326 (9" }, { "docid": "12277643", "title": "", "text": "a master may be modified in part, or rejected in toto, if they are clearly erroneous. In like manner, under the equally clear language of Rule 71A (h), the findings and awards of a commission shall be accepted unless they are clearly erroneous. But they may be modified in part, or rejected in toto, if they are clearly erroneous. And even though there is evidence to sustain findings of a master or a commission, as the case may be, they are clearly erroneous if the reviewing court on the entire evidence has the definite and firm conviction that a mistake has been committed.” We review the District Judge, not the commissioners; and under Rule 52(a) we may not set aside his findings unless they are clearly erroneous. When he has set aside the findings of a master or commissioners, we must give consideration to the fact that they saw and heard the witnesses and that he did not, and we must pass upon his findings with this in mind; but, unless we can then say that his findings are clearly erroneous when viewed in this light, we must accept them. In the case before us, we cannot say that the findings of the judge were clearly erroneous. On the contrary, we think that he has demonstrated that they rest upon a reasonable basis and that his overruling of the report of the commissioners and adopting a valuation different from theirs should be sustained. There is no merit in the contention of the government that the judge improperly valued the property by adding the value of the timber to the value of the land. The record shows that the witness Henderson arrived at his valuations of the land as a whole by adding the value of the timber to the value of the land considered without the timber. The judge accepted the valuation of the witness Honnold as to what the timber was worth, which was approximately $4,000 less than the value placed on it by Henderson. He did not, however, add this valuation to Henderson’s valuation of the land, but" }, { "docid": "22354617", "title": "", "text": "interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court.” Rule 53 provides in relevant part: “(e) Report. “ (2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6 (d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” As to the history of Rule 71A (h) see 7 Moore, Federal Practice (2d ed. 1955), pp. 2709-2712; Nealy, Rule 71A (h) in Federal Condemnation Proceedings, 23 Fed. Bar Jour. 45 (1963); H. R. Rep. No. 739, 82d Cong., 1st Sess.; S. Rep. No. 502, 82d Cong., 1st Sess.; S. Rep. No. 112, 83d Cong., 1st Sess.; Preliminary Draft of Proposed Rule to Govern Condemnation Cases, Advisory Committee on Rules for Civil Procedure, June 1947. For the Rule in operation see Annual Report, Judicial Conference of the United States, 1961, pp. 17, 106, 254; Annual Report, Judicial Conference of the United States, 1962, pp. 30, 212-214; H. R. Rep. No. 1467, 86th Cong., 2d Sess., p. 11. No question is presented concerning" }, { "docid": "2194893", "title": "", "text": "indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subpara-graph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. (3) A magistrate may be assigned such additional duties as are not inconsistent" } ]

[ { "docid": "22940797", "title": "", "text": "doubt that the payment alleged in a given count of the indictment was made by or on behalf of the doctors with the expectation that such payment would influence Mr. McCormick’s official conduct, and with knowledge on the part of Mr. McCormick that they were paid to him with that expectation by virtue of the office he held.” Id., at 33-34. “Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, ‘under color of official right.’ To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation. It would require statutory lan guage more explicit than the Hobbs Act contains to justify a contrary conclusion.” Ante, at 272-273. “In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level" } ]

[ { "docid": "1995191", "title": "", "text": "action. 18 U.S.C. § 666(a)(1)(B). Siegelman and Scrushy’s bribery convictions in this case were based upon the donation Scrushy gave to Siegelman’s education lottery campaign. As such, the convictions impact the First Amendment’s core values — protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities. In a political system that is based upon raising private contributions for campaigns for public office and for issue referenda, there is ample opportunity for that error to be committed. The Supreme Court has guarded against this possibility by interpreting federal law to require more for conviction than merely proof of a campaign donation followed by an act favorable toward the donor. McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). In reviewing a Hobbs Act prosecution for the federal crime of extortion under color of official right, the Court said: Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a" }, { "docid": "20368492", "title": "", "text": "applies to the California bribery charges, requiring the jury to find an explicit promise or agreement between Sen. Robbins and Jackson to exchange money for the performance of an official act. In McCormick, the Supreme Court interpreted the Hobbs Act, which prohibits extortion under color of official right, and held that a Hobbs Act violation can be found only “if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, Id. at 273, 111 S.Ct. at 1816. In support of his assertion that McCormick applies to the California bribery statute, Jackson relies on U.S. v. Freeman, 6 F.3d 586 (9th Cir.1993). He argues that Freeman interpreted the McCormick quid pro quo requirement as a constitutional limitation on criminalizing campaign contributions. In Freeman, the appellant challenged on First Amendment grounds Cal.Penal Code § 68, which makes it a crime for state employees to ask, receive, or agree to receive a bribe. This Court upheld the constitutionality of § 68, saying that “[although the defendant state representative in McCormick was charged with violating the Hobbs Act rather than RICO [with a predicate violation of § 68], the Supreme Court’s decision in that case controls this question.” Id. at 597. The district court rejected Jackson’s argument that without the requirement of a quid pro quo, the jury may have convicted him for exercising his protected speech in ways that, though offensive to lay persons not calloused by years of political traffic, cannot be constitutionally proscribed. The district court reasoned that U.S. v. Montoya, 945 F.2d 1068 (9th Cir.1991), limited the McCormick decision to the federal extortion statute under review in that case, and specifically ruled that McCormick has no impact on California bribery law. The government on appeal contends that the district court was correct, that Montoya has already resolved the issue in its favor, and we agree. Montoya reversed the appellant’s Hobbs Act convictions because the jury instructions failed to require a finding of an explicit quid pro quo as mandated by McCormick. The appellant then argued" }, { "docid": "22305848", "title": "", "text": "of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951 (1993). Tucker, relying on the Supreme Court’s decision in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), contends that there is insufficient evidence to show that he made an explicit promise to trade his official action for money. The government contends, however, that it need not prove a quid pro quo because this case does not involve campaign contributions. In McCormick, the Supreme Court held that in prosecutions for extortion under color of official right involving campaign contributions to a public official, the government must prove a quid pro quo. McCormick, 500 U.S. at 273-74, 111 S.Ct. at 1816-17. The Supreme Court stated that the receipt of campaign contributions violates the Hobbs Act “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. at 273, 111 S.Ct. at 1816. The Supreme Court expressly failed to consider, however, “whether a quid pro quo requirement exists in [contexts other than campaign contributions], such as when an elected official receives gifts, meals, travel expenses, or other items of value.” Id. at 274 n. 10, 111 S.Ct. at 1817 n. 10. In Evans, another case involving a Hobbs Act conviction based on campaign contributions, the Supreme Court held: “[T]he Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Evans, 504 U.S. at 268, 112 S.Ct. at 1889. The Court stated that “the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense.” Id. (emphasis added). “Exactly what effect Evans had on McCormick is not altogether clear.” United States v. Blandford, 33 F.3d 685, 695 (6th Cir.1994), cert. denied, 514 U.S. 1095, 115 S.Ct. 1821, 131 L.Ed.2d 743" }, { "docid": "7990041", "title": "", "text": "it instructed the jury that the government was not required to prove an explicit quid pro quo in order to establish “official right” extortion under the Hobbs Act. If Carpenter is correct, we must reverse his conviction on all four counts. Counts II, III, and IV all charge violations of the Hobbs Act. Count I charges Carpenter with racketeering based on six predicate acts, five of which are Hobbs Act violations. Since the government must prove at least two predicate acts to constitute a “pattern” under RICO, see 18 U.S.C. § 1961(5), Carpenter’s conviction on count I must be reversed if the Hobbs Act predicates are invalid. In McCormick v. United States, - U.S. -, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), the Supreme Court held that receipt of campaign contributions would violate the Hobbs Act “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. 111 S.Ct. at 1816. Although McCormick was decided after the jury verdict in Carpenter’s case, it applies retroactively to all cases pending on direct appeal. United States v. Montoya, 945 F.2d 1068, 1071 (9th Cir.1991). In Montoya, we held that it was error to instruct the jury that “[t]he Government is not required to prove that the defendant demanded or’ directly solicited the payment made or that he offered anything specific in return for it.” Id. at 1073. The instruction given in Carpenter’s case is indistinguishable: “there need be no specific quid pro quo to establish extortion under color of official right; that is, the Government need not prove that the defendant promised to do anything in particular in return for the payment of money.” This instruction was error because it removed from the jury McCormick’s requirement of an explicit quid pro quo. The error is not harmless because it created a reasonable possibility that Carpenter was convicted for activity that is not a crime. Accord Montoya, 945 F.2d at 1074. Accordingly, we reverse Carpenter’s conviction on all four counts. Ill Carpenter also contends that there was" }, { "docid": "1995190", "title": "", "text": "jury to find a quid pro quo in order to convict; that, in any event, there was insufficient evidence of any quid pro quo; that the bribery counts were barred by the statute of limitations; and that the trial court erroneously admitted hearsay to prove these counts. Defendants also allege that there was juror misconduct requiring the grant of a new trial and that the procedures used to select their grand and petit juries violated the Jury Selection and Services Act of 1968 and the United States Constitution. Siegelman contends that there was insufficient evidence that he obstructed justice and that the district court abused its discretion in sentencing him by upwardly departing from the Sentencing Guidelines. We shall consider each of these allegations of error in turn. III. 1. Counts 3 and k- Federal Funds Bribery. The bribery statute under which defendants were convicted makes it a crime for a state official to corruptly agree to accept anything of value from another person “intending to be influenced” in that person’s favor in an official action. 18 U.S.C. § 666(a)(1)(B). Siegelman and Scrushy’s bribery convictions in this case were based upon the donation Scrushy gave to Siegelman’s education lottery campaign. As such, the convictions impact the First Amendment’s core values — protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities. In a political system that is based upon raising private contributions for campaigns for public office and for issue referenda, there is ample opportunity for that error to be committed. The Supreme Court has guarded against this possibility by interpreting federal law to require more for conviction than merely proof of a campaign donation followed by an act favorable toward the donor. McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). In reviewing a Hobbs Act prosecution for the federal crime of extortion under color" }, { "docid": "20403853", "title": "", "text": "because, in our flawed but nearly universal system of private campaign financing, large contributions are commonly given in expectation of favorable official action. The Supreme Court was sensitive to this issue in McCormick: Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the crime of federal extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” McCormick, 500 U.S. at 272, 111 S.Ct. 1807. How, then, in the potentially polluted atmosphere of campaign contributions, can we tell a criminal agreement from a large campaign contribution accepted from a contributor who expects favorable results? The Supreme Court’s answer lies in the level of explicitness, which permits a line to be drawn legally if not according to ethical perfection. The receipt of [campaign] contributions is ... vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not perform an official act. In such situations the official asserts that his official conduct will be controlled by the terms of the promise or undertaking. Id. at 273, 111 S.Ct. 1807. We note that this requirement of explicitness refers to the promise of official action, not the connection between the contribution and the promise. An official may be convicted without evidence equivalent to a statement such as: “Thank you for the $10,000 campaign contribution. In return for it, I promise to introduce your bill tomorrow.” The connection between the explicit promise of official action and the contribution must be proved, but the proof may be" }, { "docid": "6422760", "title": "", "text": "include extortion and bribery. The core of Giles’ contentions is that to prove extortion the government must show that Niagra made payments in exchange for a quid pro quo■ — a specific promise to perform or not perform an official act. It is the alleged failure to prove a quid pro quo that Giles claims requires a judgment of acquittal on the Rule 29 motion he filed after the trial. He also claims that the jury was not properly instructed regarding the necessity of a quid pro quo. Extortion is defined in the Hobbs Act, 18 U.S.C. § 1951, as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right,” and this is an “under color of official right” case. In such a case, it is well-established after McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), that in order to obtain a Hobbs Act conviction based on an official’s acceptance of campaign contributions, the government must show that the “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. at 273, 111 S.Ct. 1807. See also United States v. Allen, 10 F.3d 405 (7th Cir.1993). The Court explicitly stated that its holding in McCormick did not apply to payments made to nonelected officials or payments made to elected officials but which are determined not to be campaign contributions. Because the bulk of the payments Niagra made to Giles were not campaign contributions, the issue before us is whether an extortion conviction under the Hobbs Act requires that payments which are made “under color of official right” but which are not campaign contributions must also be shown to have been paid in exchange for a specific promise to perform an official act. Giles argues that the district judge mistakenly interpreted Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), when she concluded that the quid pro quo requirement applies" }, { "docid": "6995920", "title": "", "text": "McCormick was decided after the jury verdict and thus was not available to the district judge when he instructed the jury, we must apply the McCormick standards on appeal. “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases pending on direct appeal.” United States v. Hilling, 891 F.2d 205, 207 (9th Cir.1988) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987)). 1. The Jury Instructions The Hobbs Act provides, in relevant part, that a person is guilty of a crime if he or she “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by ... extortion or attempts or conspires so to do_” 18 U.S.C. § 1951(a) (1988). The term “extortion” is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Id. § 1951(b)(2). In United States v. Aguon (Aguon II), 851 F.2d 1158 (9th Cir.1988) (en banc), we held that in order to obtain a conviction under the Hobbs Act for extortion “under color of official right,” the prosecution must prove the defendant in duced the improper payment. Aguon II, 851 F.2d at 1160, 1166, 1172. The Supreme Court recently enunciated an additional requirement for a Hobbs Act conviction of extortion “under color of official right” in McCormick v. United States. In that case, the defendant contended that the alleged extortionate payments were received as legitimate election campaign contributions. The Supreme Court held that, in order to establish the Hobbs Act violation, the prosecution had to prove that the payments were “made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, 111 S.Ct. at 1816. In other words, the prosecution had to prove an explicit “quid pro quo.” Id. In McCormick, the Court reversed a Hobbs Act conviction of a state legislator for extortion “under color of official right.” The" }, { "docid": "3229181", "title": "", "text": "(1991). In other words, where the payment takes the form of a campaign contribution, the government must prove a “specific quid pro quo ” between the public official and the payor. United States v. Cruzado-Laureano, 404 F.3d 470, 482 (1st Cir.2005). This last requirement is rooted in the recognition that candidates for political office must raise money to fund their campaigns and that, to do so effectively, they often must make promises concerning their plans if elected. As the Supreme Court explained: Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents ... shortly before or after campaign contributions are solicited and received from the beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, ‘under color of official right.’ To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation. McCormick, 500 U.S. at 272, 111 S.Ct. 1807. The government contends that the quid pro quo requirement does not apply in this case because there was evidence from which a jury could conclude that Gostoves’ payment to D’Amico was not a campaign contribution. But, whatever inference the evidence may have permitted, the district court instructed the jury that to find D’Amico guilty, it had to conclude that “the payment was made in return for an agreement or a promise by [D’Amico] to perform some official act.... The quid pro quo is a promise to use the office for the benefit of the payor.” This instruction, unobjected to by the government, is the law of the" }, { "docid": "7990040", "title": "", "text": "involved separate instances in which Carpenter allegedly pressured lobbyists to make contributions to him. Each of these five acts was alleged to be attempted extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951(b)(2). Count II of the superseding indictment charged that Carpenter’s acceptance of $20,000 to ensure passage of AB 3773 constituted extortion under color of official right in violation of the Hobbs Act. Count III charged that Carpenter conspired with his aide John Shahabian to commit extortion under the Hobbs Act in connection with AB 3773. Count IV charged Carpenter with attempted extortion in violation of the Hobbs Act for trying to induce payment from a lobbyist for the California Correctional Peace Officer’s Association. The jury convicted Carpenter on all four counts. He was sentenced to concurrent prison terms of 12 years on the first three counts. The sentence for count IV was suspended and Carpenter was placed on probation for three years. This appeal followed. II Carpenter argues that the district court committed reversible error when it instructed the jury that the government was not required to prove an explicit quid pro quo in order to establish “official right” extortion under the Hobbs Act. If Carpenter is correct, we must reverse his conviction on all four counts. Counts II, III, and IV all charge violations of the Hobbs Act. Count I charges Carpenter with racketeering based on six predicate acts, five of which are Hobbs Act violations. Since the government must prove at least two predicate acts to constitute a “pattern” under RICO, see 18 U.S.C. § 1961(5), Carpenter’s conviction on count I must be reversed if the Hobbs Act predicates are invalid. In McCormick v. United States, - U.S. -, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), the Supreme Court held that receipt of campaign contributions would violate the Hobbs Act “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. 111 S.Ct. at 1816. Although McCormick was decided after the jury verdict" }, { "docid": "6995921", "title": "", "text": "Aguon (Aguon II), 851 F.2d 1158 (9th Cir.1988) (en banc), we held that in order to obtain a conviction under the Hobbs Act for extortion “under color of official right,” the prosecution must prove the defendant in duced the improper payment. Aguon II, 851 F.2d at 1160, 1166, 1172. The Supreme Court recently enunciated an additional requirement for a Hobbs Act conviction of extortion “under color of official right” in McCormick v. United States. In that case, the defendant contended that the alleged extortionate payments were received as legitimate election campaign contributions. The Supreme Court held that, in order to establish the Hobbs Act violation, the prosecution had to prove that the payments were “made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, 111 S.Ct. at 1816. In other words, the prosecution had to prove an explicit “quid pro quo.” Id. In McCormick, the Court reversed a Hobbs Act conviction of a state legislator for extortion “under color of official right.” The legislator had informed a lobbyist during a reelection campaign “that his campaign was expensive, that he had paid considerable sums out of his own pocket, and that he had not heard anything” from the constituents. After the lobbyist contacted the constituents, a number of cash payments were paid by the constituents to McCormick. McCormick neither listed any of these payments as campaign contributions nor reported the money as income on his federal tax return. It was undisputed that the payments were illegal under state law. McCormick then sponsored and advocated successfully for passage of the constituents’ proposed legislation, and received an additional cash payment two weeks after the legislation was enacted. The jury convicted McCormick on one of five charged Hobbs Act counts pursuant to instructions that informed them “that to establish a Hobbs Act violation the Government had to prove that McCormick induced a cash payment and that he did so knowingly and willfully by extortion.” Id. at 1810. The district court further instructed the jury on the required proof with respect to the" }, { "docid": "7012641", "title": "", "text": "such a requirement into the statute, as the Supreme Court did in construing the Hobbs Act in McCormick v. United States, 500 U.S. -, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). In that case, the Supreme Court held that an elected official could not be prosecuted for extortion for accepting campaign contributions unless “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, 500 U.S. at -, 111 S.Ct. at 1816, 114 L.Ed.2d at 326. Any comparison of McCormick to the case at bar must, of course, start with the obvious observation that McCormick was a Hobbs Act ease, while the current argument is about the gratuities statute. It is thus doubtful whether McCormick controls at all. But even if McCormick did apply to the gratuities statute, I do not believe it would require the government to plead a quid pro quo in this case. To begin with, the McCormick court explicitly did not decide whether its reasoning should carry beyond the campaign contributions context. The court said, “we do not decide whether a quid pro quo requirement exists in other contexts, such as when an elected official receives gifts, meals, travel expenses, or other items of value.” Id. 500 U.S. at -, n. 10, 111 S.Ct. at 1817, n. 10, 114 L.Ed.2d at 326, n. 10. The McCormick opinion concentrated not on the Hobbs Act itself, but on the character of campaign contributions and the appropriateness of using them in a Hobbs Act indictment, further indicating that the Supreme Court’s holding was a very narrow one, applicable only to campaign contributions, which have historically been given special First Amendment status. See, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Court explained that it would make no sense “to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from" }, { "docid": "20403852", "title": "", "text": "Cir.2009). Our court has elaborated on the type of evidence that will sustain a finding of quid pro quo: [W]hat McCormick requires is that the quid pro quo be clear and unambiguous, leaving no uncertainty about the terms of the bargain.... [T]he explicitness requirement serves to distinguish between contributions that are given or received with the “anticipation” of official action and contributions that are given or received in exchange for a “promise” of official action. When a contributor and an official clearly understand the terms of a bargain to exchange official action for money, they have moved beyond “anticipation” and into an arrangement that the Hobbs Act forbids. This understanding need not be verbally explicit. The jury may consider both direct and circumstantial evidence, including the context in which a conversation took place, to determine if there was a meeting of the minds on a quid pro quo. United States v. Carpenter, 961 F.2d 824, 827 (9th Cir.1992) (internal citation omitted). We confess considerable uneasiness in applying this standard to the acceptance of campaign contributions because, in our flawed but nearly universal system of private campaign financing, large contributions are commonly given in expectation of favorable official action. The Supreme Court was sensitive to this issue in McCormick: Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the crime of federal extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” McCormick, 500 U.S. at 272, 111 S.Ct. 1807. How, then, in the potentially polluted atmosphere of campaign contributions, can we tell a criminal agreement from a large campaign contribution accepted from a contributor" }, { "docid": "8180156", "title": "", "text": "S.Ct. 1807, 114 L.Ed.2d 307 (1991). In McCormick, a state legislator received cash payments during his reelection campaign from a lobbyist supporting a particular piece of legislation; the legislator subsequently sponsored and spoke in favor of the legislation. A grand jury charged the legislator with five counts of violating the Hobbs Act by extorting payments “under color of official right,” 18 U.S.C. § 1951(b)(2), and a jury convicted him. — U.S. at -, 111 S.Ct. at 1810. But the Supreme Court reversed the legislator’s conviction because the trial court had not instructed the jury that the receipt of campaign contributions constitutes extortion under color of official right “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not perform an official act.” Id. at -, 111 S.Ct. at 1816. The district court refused to give Allen’s requested jury instruction based on McCormick because McCormick involved Hobbs Act extortion, while Allen’s case involved an alleged RICO violation based on alleged violations of Indiana’s bribery statute. The court reasoned that unlike the Hobbs Act, the Indiana bribery statute required no explicit quid pro quo between a purported campaign contribution and an official act. Instead, “ ‘in Indiana it is the soliciting or the receiving of money by an official to influence him with respect to his official duties that is the gravamen of the offense of bribery.’ ” United States v. Allen, No. HCR 91-73, at 17-18 (N.D.Ind.1992) (quoting United States v. Forszt, 655 F.2d 101, 103 (7th Cir.1981)). Allen’s response to the district court’s distinction between bribery and Hobbs Act extortion is essentially, “So what?” Allen maintains that whether the charge against a defendant be extortion or bribery, the concerns that led the Supreme Court to adopt the quid pro quo requirement in McCormick exist. This argument is not without force. McCormick recognized several realities of the American political system. Money fuels the American political machine. Campaigns are expensive, and candidates must constantly solicit funds. People vote for candidates and contribute to the candidates’ campaigns because of those candidates’ views, performance," }, { "docid": "20368491", "title": "", "text": "diseretion standard should apply here. Because the issue is whether McCormick implies a quid pro quo element into a § 85 offense, the question is one of law, not merely of the wording of the instructions. The government claims that Jackson failed to preserve the issue with a proper objection and therefore the plain error standard applies. Even absent a formal objection after the rejection of his proposed instruction, Jackson adequately preserved the issue. He argued his quid pro quo point throughout, offered an alternative instruction, and it is clear from the record the court knew of his objection. See U.S. v. Kessi 868 F.2d 1097 (9th Cir.1989) (establishing test to determine whether an issue was adequately preserved absent a formal objection). 3.Discussion The heart of the debate is whether the Supreme Court, in McCormick v. U.S., 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), mandates reading a quid pro quo requirement into California’s bribery laws. At the jury instructions conference and now in his brief, Jackson argued that the holding of McCormick applies to the California bribery charges, requiring the jury to find an explicit promise or agreement between Sen. Robbins and Jackson to exchange money for the performance of an official act. In McCormick, the Supreme Court interpreted the Hobbs Act, which prohibits extortion under color of official right, and held that a Hobbs Act violation can be found only “if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, Id. at 273, 111 S.Ct. at 1816. In support of his assertion that McCormick applies to the California bribery statute, Jackson relies on U.S. v. Freeman, 6 F.3d 586 (9th Cir.1993). He argues that Freeman interpreted the McCormick quid pro quo requirement as a constitutional limitation on criminalizing campaign contributions. In Freeman, the appellant challenged on First Amendment grounds Cal.Penal Code § 68, which makes it a crime for state employees to ask, receive, or agree to receive a bribe. This Court upheld the constitutionality of § 68, saying that" }, { "docid": "8180155", "title": "", "text": "was made in the context of a political campaign, that three of the payments were at least ostensibly in exchange for tickets to fundraising functions, and that even the case of whiskey was actually used at a fundraising function) the question is: when is a campaign contribution a bribe? According to Allen, only if a payment “is made in return for an explicit promise or undertaking by the official to perform or not to perform an official act;” that is, only if the payment is an explicit quid pro quo for the promise. At trial, Allen submitted an instruction that would have told the jury that Whatever your attitudes regarding political fundraising and whatever the ethical considerations may be, so long as election campaigns are financed by private contributions, such contributions cannot be considered bribes unless, and only, if accepted in return for an explicit promise or undertaking to perform or not to perform an official act. Allen draws this standard from the Supreme Court’s decision in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). In McCormick, a state legislator received cash payments during his reelection campaign from a lobbyist supporting a particular piece of legislation; the legislator subsequently sponsored and spoke in favor of the legislation. A grand jury charged the legislator with five counts of violating the Hobbs Act by extorting payments “under color of official right,” 18 U.S.C. § 1951(b)(2), and a jury convicted him. — U.S. at -, 111 S.Ct. at 1810. But the Supreme Court reversed the legislator’s conviction because the trial court had not instructed the jury that the receipt of campaign contributions constitutes extortion under color of official right “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not perform an official act.” Id. at -, 111 S.Ct. at 1816. The district court refused to give Allen’s requested jury instruction based on McCormick because McCormick involved Hobbs Act extortion, while Allen’s case involved an alleged RICO violation based on alleged violations of Indiana’s bribery statute. The" }, { "docid": "3229180", "title": "", "text": "decide, viewing the evidence in the light most favorable to the verdict of guilt, whether a reasonable fact-finder could find the defendant guilty of the crime beyond a reasonable doubt.” United States v. Boulanger, 444 F.3d 76, 89 (1st Cir.2006). In relevant part, the Hobbs Act defines extortion “as the obtaining of property from another with his consent, induced ... under color of official right.” 18 U.S.C. § 1951(b)(2). “To establish guilt for extortion under color official right, the [government] must show ... that the defendant, a public official, has received an emolument that he was not entitled to receive, with knowledge that the emolument was tendered in exchange for some official act.” United States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st Cir.2006). Additionally, where the payment was treated as a campaign contribution, the government must demonstrate that the payment was “in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). In other words, where the payment takes the form of a campaign contribution, the government must prove a “specific quid pro quo ” between the public official and the payor. United States v. Cruzado-Laureano, 404 F.3d 470, 482 (1st Cir.2005). This last requirement is rooted in the recognition that candidates for political office must raise money to fund their campaigns and that, to do so effectively, they often must make promises concerning their plans if elected. As the Supreme Court explained: Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents ... shortly before or after campaign contributions are solicited and received from the beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his" }, { "docid": "22305847", "title": "", "text": "discretionary refusal to depart from the Sentencing Guidelines. United States v. Eyler, 67 F.3d 1386, 1390 n. 5 (9th Cir.1995). If the district court indicates, however, that it lacked the discretion to depart, we review that determination de novo. United States v. Brownstein, 79 F.3d 121, 122 (9th Cir.1996). I. Hobbs Act Violations The prosecution brought seven counts against Tucker under the Hobbs Act, 18 U.S.C. § 1951, which provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,-000 or imprisoned not more than twenty years, or both. (b) As used in this section- * * * * * # (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951 (1993). Tucker, relying on the Supreme Court’s decision in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), contends that there is insufficient evidence to show that he made an explicit promise to trade his official action for money. The government contends, however, that it need not prove a quid pro quo because this case does not involve campaign contributions. In McCormick, the Supreme Court held that in prosecutions for extortion under color of official right involving campaign contributions to a public official, the government must prove a quid pro quo. McCormick, 500 U.S. at 273-74, 111 S.Ct. at 1816-17. The Supreme Court stated that the receipt of campaign contributions violates the Hobbs Act “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. at 273, 111 S.Ct. at 1816. The Supreme Court expressly failed" }, { "docid": "22951557", "title": "", "text": "cases — McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57, and United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) — in support of his argument. Antico begins by citing to the cornerstone Supreme Court case on Hobbs Act extortion — McCormick, which held that an explicit quid pro quo is necessary for conviction under the Hobbs Act when a public official receives a campaign contribution. In McCormick, the Supreme Court ruled that the District Court erred by instructing the jury that such a quid pro quo was not necessary. McCormick 500 U.S. at 274. The logic the Supreme Court employed in McCormick follows the fine line between what is legal campaign activity and the “forbidden zone of conduct.” [T]o hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation. It would require statutory language more explicit than the Hobbs Act contains to justify a contrary conclusion. Id. at 272-73, 111 S.Ct. 1807. Because the line is so subtle, the Supreme Court ruled in McCormick that an overt quid pro quo is a necessary proof in the context of campaign contributions. The receipt of such contributions is also vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return" }, { "docid": "1995192", "title": "", "text": "of official right, the Court said: Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation. Id. at 272, 111 S.Ct. 1807. To avoid this result, the Court made clear that only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.” Id. at 273, 111 S.Ct. 1807 (emphasis added). The Court quoted the Court of Appeals for the Fifth Circuit, which had said that: A moment’s reflection should enable one to distinguish, at least in the abstract, a legitimate solicitation from the exaction of a fee for a benefit conferred or an injury withheld. Whether described familiarly as a payoff or with the Latinate precision of quid pro quo, the prohibited exchange is the same: a public official may not demand payment as inducement for the promise to perform (or not to perform) an official act. Id. (quoting United States v. Dozier, 672 F.2d 531, 537" } ]

[ { "docid": "14642439", "title": "", "text": "whether a punitive damage award was excessive, and examined the punitive damage award in light of Gore’s three guideposts: “the degree of reprehensibility of the nondisclosure; the disparity between the harm or potential harm suffered by [the plaintiff] and his punitive damages award; and the difference between this remedy and the civil [and criminal] penalties authorized or imposed in comparable cases.” Asa-Brandt v. Farmers Coop. Soc’y, No. CO1-3021-MWB, 2002 WL 1714197, at *6 (N.D.Iowa May 10, 2002) (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589). First, the district court noted that, when assessing punitive damages, they should not be grossly out of proportion to the severity of the offense. Id. In order to determine whether the punitive damages were appropriately proportional, the district court followed Gore’s hierarchy of reprehensibility. Id; see also State Farm Mut. Auto. Ins. Co. v. Campbell, — U.S.-,-, 123 S.Ct. 1513, 1521, 155 L.Ed.2d 585 (2003). It found the Farmers presented evidence that Wesley acted with apparent disregard for others’ rights. Farmers Coop. Soc’y, 2002 WL 1714197, at *6. Wesley’s conduct, according to the hierarchy of reprehensiveness, was clearly more reprehensible than the conduct in Gore, and is at a similar level to the conduct in State Farm. Its conduct therefore warranted a substantial punitive damage award. Next, the district court considered the disparity between the actual or potential harm to the Farmers and the punitive damages award. See Gore, 517 U.S. at 580-81, 116 S.Ct. 1589; State Farm, — U.S. at-, 123 S.Ct. at 1524. On appeal, we consider “ ‘whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that has actually occurred.” ’ Gore, 517 U.S. at 581, 116 S.Ct. 1589 (quoting TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 460, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993)). The jury was presented with evidence that, if Wesley’s scheme had worked, the Farmers would have been required to pay Wesley sums totaling more than $3.9 million. The record supports the view, therefore, that a punitive" } ]

[ { "docid": "11993193", "title": "", "text": "JCB and other creditors of its plan on June 12, 2003. JCB responded on July 2 with a written proposal to sell the equipment in which it claimed a security interest through its dealership system. Its proposal was not accepted by the Bank. On July 15 two days before the auction, JCB sent a letter demanding that the Bank remove its equipment from the auction and return it. This letter also stated that JCB asserted a first priority purchase money security interest in the machines and disputed the Bank’s claim to them. ATEC nevertheless proceeded with the auction on behalf of the Bank as originally scheduled, and around $839,000 was obtained for the equipment. Although there were varying estimates, there was testimony at trial that the equipment had a fair market value of about $1.1 million. The Bank eventually placed the proceeds from the equipment in a nonin-terest bearing account mingled with proceeds from other collateral; it subsequently withdrew some of the money to cover Machinery’s obligations to the Bank, including attorney fees for a separate action. JCB filed this action against the Bank and Machinery in September 2003, seeking a declaratory judgment that it had a security interest in the equipment which was senior to the interests of the Bank and Machinery, and also asserting claims in trespass and conversion. The Bank counterclaimed on four counts, requesting a declaratory judgment that it held the senior security interest in the collateral. The district court referred the matter to the bankruptcy court for determination under Machinery’s reorganization plan of the relative priorities of its creditors’ secured interests. The Bank moved unsuccessfully for summary judgment, and JCB moved for partial summary judgment on its own claims and on the Bank’s counterclaims. The bankruptcy court determined that both the Bank and JCB had perfected security interests in the collateral, but that JCB’s lien was senior because Machinery’s reorganization plan preserved JCB’s pre-petition purchase money security interest in the equipment Machinery acquired after confirmation of the plan. The district court held a jury trial on the issue of damages. The jury was instructed on" }, { "docid": "19097614", "title": "", "text": "damages, the evidence, taken in a light most favorable to Wallace, was sufficient under Missouri law to justify submitting this issue to the jury. The award, however, was excessive when viewed in light of prevailing due process limitations. The punitive damages in this case were fifty times greater than Wallace’s lost wages and benefits, twenty-five times greater than her other compensatory damages, and approximately sixteen times greater than all of the actual damages combined. Given the nature of Wallace’s claims and the evidence at trial, the most important factors to consider in a due process analysis include “the degree of reprehensibility of the defendant’s conduct” and the “ratio [of punitive damages] to the actual harm inflicted on the plaintiff.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 580, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Applying the first of these factors, the present defendant’s actions were not so egregious as to set this case apart from other retaliation cases involving punitive damage awards. With no such outstanding circumstances, the extraordinary, sixteen-to-one ratio appears excessive. A high ratio may be appropriate based on particularly reprehensible conduct or where actual damages are nominal. See JCB, Inc. v. Union Planters Bank, NA, 539 F.3d 862, 876 (8th Cir.2008) (“Punitive damages may withstand constitutional scrutiny when only nominal or a small amount of compensatory damages have been assigned, even though the ratio between the two will necessarily be large.”). Clearly, however, the jury’s award of $30,000 actual damages in this case is not a nominal amount that might excuse a higher ratio. As such, a single-digit multiple should be an outer limit on Wallace’s award. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (“[I]n practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”); Williams v. ConAgra Poultry Co., 378 F.3d 790, 799 (8th Cir.2004) (“In the absence of extremely reprehensible conduct against the plain tiff or some special circumstance such an extraordinarily small compensatory award, awards in excess" }, { "docid": "11993194", "title": "", "text": "separate action. JCB filed this action against the Bank and Machinery in September 2003, seeking a declaratory judgment that it had a security interest in the equipment which was senior to the interests of the Bank and Machinery, and also asserting claims in trespass and conversion. The Bank counterclaimed on four counts, requesting a declaratory judgment that it held the senior security interest in the collateral. The district court referred the matter to the bankruptcy court for determination under Machinery’s reorganization plan of the relative priorities of its creditors’ secured interests. The Bank moved unsuccessfully for summary judgment, and JCB moved for partial summary judgment on its own claims and on the Bank’s counterclaims. The bankruptcy court determined that both the Bank and JCB had perfected security interests in the collateral, but that JCB’s lien was senior because Machinery’s reorganization plan preserved JCB’s pre-petition purchase money security interest in the equipment Machinery acquired after confirmation of the plan. The district court held a jury trial on the issue of damages. The jury was instructed on both trespass and conversion, and the verdict form had separate sections for each tort with separate lines for compensatory and punitive damages. For the Bank’s conversion of JCB’s equipment, the jury awarded JCB $1,446,500 in compensatory damages based on its fair market value (which included $346,500 in interest) and $1,150,000 in punitive damages. The district court directed the jury to award $1 in compensatory damages on JCB’s trespass claim since the fair market value of the land had not been diminished by the trespass; the parties agreed that that amount was appropriate. The jury awarded JCB $1,087,500 in punitive damages for the Bank’s trespass. The Bank filed post trial motions for judgment as a matter of law, a new trial, and remittitur of the damages. The district court denied the motions and ordered that judgment be entered for JCB in the amounts awarded by the jury; the judgment lists the amounts awarded for trespass and conversion separately. The Bank appeals from the judgment, arguing that it had the senior security interest in the collateral as" }, { "docid": "11993206", "title": "", "text": "and suggestions for alternative ways of selling the equipment prior to the public auction arranged by the Bank. JCB’s communications put the Bank on notice that JCB claimed rights in the collateral, yet it chose to proceed with the sale anyway. There was evidence that the Bank’s officer in charge of this matter knew there were other means to take possession of the machines which would have protected JCB’s rights but chose not to use them. Testimony indicated that the Bank’s decision to proceed with the liquidation auction resulted in the sale of the equipment for less than full value. After the auction, the Bank knew that JCB disputed its right to the proceeds of the collateral. Yet it did not place the funds under joint control or in an escrow account. Because this evidence indicated with sufficiently high probability that the Bank seized and sold the machines with reckless disregard for JCB’s rights in them, the district court did not abuse its discretion in submitting the issue of punitive damages for conversion. The Bank next asserts that it was entitled to judgment as a matter of law on punitive damages because JCB did not meet its burden to show by clear and convincing proof that it had a culpable state of mind. Reviewing de novo, see Dominic, 493 F.3d at 974, we disagree. Although a punitive damages award may be reversed on appeal under Missouri law if there is no evidence of evil motive or reckless indifference, see Walker v. Gateway Nat’l Bank, 799 S.W.2d 614, 617 (Mo. Ct.App.1990), we will not lightly overturn a jury verdict unless there is a complete absence of probative facts and no proof beyond speculation to support that verdict. See Wedow v. Kansas City, 442 F.3d 661, 669 (8th Cir.2006). A reasonable jury could have credited JCB’s evidence that the Bank acted with reckless indifference to its rights in the land and in the collateral, and an evil motive may be inferred from such evidence. See Walker, 799 S.W.2d at 617, citing Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo. banc 1989). The" }, { "docid": "11993218", "title": "", "text": "award for the Bank’s trespass is constitutionally excessive. See Saunders, 526 F.3d at 154. The Bank directed ATEC to enter JCB’s fenced lot without permission or notification, and the trespass was done for the purpose of seizing and selling JCB’s collateral. The Bank’s trespass was sufficiently reprehensible to warrant a substantial penalty. See Diesel Machinery, 418 F.3d at 839-40; Asar-Brandt, 344 F.3d at 746-47; cf. Gore, 517 U.S. at 575, 116 S.Ct. 1589 (reprehensibility is “perhaps the most important indicium of the reasonableness of a punitive damages award”). The state has a legitimate interest in punishing and deterring such trespasses, as well as the risk of violent confrontation which may arise from them. Missouri authorizes criminal fines of $2000 for trespass, or double a corporation’s gain from the offense, as well as a term of imprisonment of up to six months. See Mo.Rev.Stat. §§ 569.140, 560.021.1, 558.011(6). The highest punitive damage award we found in a comparable Missouri case was $400,-000 — based on actual damages of $25,000 for conversion and $5,000 for trespass— against a repair company which repossessed a bulldozer from a couple after they defaulted on payments for repairs on the machine. Perkins v. Dean Machinery Co., 211 S.W.3d 148, 148 (Mo.Ct.App.2007) (affirming punitive award); Perkins, 132 S.W.3d at 298-99 (underlying facts and actual damages). Although that award covered both trespass and conversion, it was significantly lower than the punitive damages JCB received for trespass alone. And while the Bank’s trespass was necessary for it to effect its conversion, a separate award punished that tort and compensated JCB for its loss on the sale. Under all the circumstances we conclude that the $1,087,500 awarded in punitive damages for the Bank’s trespass was beyond what due process will permit. When faced with an award which exceeds due process limits, it is appropriate to remit it to an amount which is “sufficiently punitive, but that does not violate notions of fundamental fairness.” Conseco Finan. Serv. Corp. v. North American Mortgage Co., 381 F.3d 811, 825 (8th Cir.2004). Neither the Bank nor JCB has suggested an alternate amount of punitive" }, { "docid": "11993214", "title": "", "text": "also BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Our review of the constitutionality of punitive damage awards is guided by a three factor test set by the Supreme Court: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418, 123 S.Ct. 1513, citing Gore, 517 U.S. at 575, 116 S.Ct. 1589. In converting JCB’s property the Bank acted with “callous disregard” of JCB’s rights, and the reprehensibility of its conduct was comparable to the conduct which supported punitive damages in prior business cases. Diesel Machinery, 418 F.3d at 840; see also Asa/Brandt, Inc. v. ADM Investor Servs., Inc., 344 F.3d 738, 746-47 (8th Cir.2003). The Bank’s tortious conduct involved in the conversion was not “accidental or inadvertent.” Eden Elec., Ltd. v. Amana Co., 370 F.3d 824, 828 (8th Cir.2004). Rather, the Bank deliberately decided to seize JCB’s equipment, although it had never made loans against that specific collateral and although Machinery at the time had a zero balance on the principal and interest on its loan from the Bank. JCB demanded that the equipment be returned, but the Bank retained it nonetheless. When the Bank sold the equipment it knew that JCB asserted a priority security interest in it and had offered another method of sale, but the Bank nevertheless proceeded with the auction, obtaining less than full value for the equipment. Although JCB had demanded the proceeds from the auction, the Bank retained the funds for itself, placing them in a noninterest bearing account with the proceeds from other collateral. The ratio between the damage awards for conversion is approximately 1:1 ($1,100,000 compensatory and $1,150,000 punitive damages). See State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (suggesting that punitive damages equal to compensatory damages are within constitutional limits “[w]hen compensatory damages are" }, { "docid": "11993211", "title": "", "text": "compensatory and punitive damages was below some approved by our court in prior cases. JCB defends this approach, but the Bank argues the awards should be addressed separately. Trespass and conversion protect distinct legal rights, and here the torts were based on separate actions by the Bank. An action in trespass traditionally protects the proprietary interest of the owner or possessor of land, see Motchan v. STL Cablevision, Inc., 796 S.W.2d 896, 898 (Mo.Ct.App.1990), and the Bank’s trespass was based on ATEC’s entry onto JCB’s fenced lot. In contrast, conversion violates an owner’s right of possession in personal property. See Carter v. White, 241 S.W.3d 357, 362 (Mo.Ct.App.2007). The Bank’s conversion involved its taking possession of the equipment and retaining it even after JCB demanded its return. Both torts are punishable by punitive damages under Missouri law, see Wright, 619 S.W.2d at 803; Dayton Constr., 882 S.W.2d at 209, and the district court and jury treated the two torts as distinct during the trial on damages. Because “exacting appellate review ensures that an award of punitive damages is based upon an application of law, rather than ... caprice,” State Farm, 538 U.S. at 418, 123 S.Ct. 1513 (quotation omitted), the way in which the issue was presented to the jury is relevant to our review. Here, punitive damages were awarded separately at trial, for different acts causing distinct legal harms. To be sure, a single punitive damages instruction for separate counts of trespass and conversion “ ‘may be adequate’ ” under Missouri law when the acts underlying each tort were “ ‘identical.’ ” McKamely v. Hession, 704 S.W.2d 701, 703 (Mo.Ct.App.1986), quoting Weldon v. Town Prop., Inc., 633 S.W.2d 196, 199 (Mo.Ct.App.1982). If “the trespass count relate[s] to an unauthorized entry” onto property, however, and “the conversion count refer[s] to the repossession of personal property found” where the trespass occurred, the “courses of conduct [a]re separate and distinct, requiring separate punitive damage instructions to be submitted.” McKamely, 704 S.W.2d at 702 (describing Weldon). The Bank’s acts of trespass involved an unauthorized entry onto JCB’s lot, and its conversion was based" }, { "docid": "528620", "title": "", "text": "S.Ct. 1513, 155 L.Ed.2d 585 (2003) (“The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”). In State Farm, the Court confirmed three guideposts for lower courts to use when considering the constitutionality of a punitive damage award that were initially enunciated in BMW. Id. at 416-18, 123 S.Ct. 1513. Under these guideposts, a court’s decision must be informed by: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Id. at 418, 123 S.Ct. 1513. In this case, the New River Defendants challenge only the disparity between the harm suffered and the punitive damages. See R. 194 at 7. There is a question as to how the Court should calculate the ratio of punitive to compensatory damages in cases with distinct punitive damage awards on individual claims, ie., should the court calculate a ratio for each claim by comparing the compensatory damages to punitive damages on a claim-by-claim basis or should it aggregate the compensatory damages on all claims against a particular defendant and compare those damages to the aggregate punitive damages against that defendant. The Court has only found a few circuit cases analyzing the constitutionality of punitive damage awards on individual claims, and their results differ. Compare JCB, Inc. v. Union Planters Bank, NA, 539 F.3d 862, 874-77 (8th Cir.2008) (analyzing the constitutionality of punitive damage awards for trespass and conversion claims separately), with Pollard v. E.I. DuPont De Nemours, Inc., 412 F.3d 657, 668 (6th Cir.2005) (combining compensatory damages from separate claims when calculating ratio even though the punitive damage award was only for one claim), King v. Macri, 993 F.2d 294, 298-99 (2d Cir.1993) (analyzing the constitutionality of punitive damage awards for excessive force, false arrest, and malicious prosecution claims on an aggregate basis), and Roy Exp. Co. Establishment of Vaduz, Liech. v. Columbia Broad. Sys.," }, { "docid": "2333581", "title": "", "text": "awards for a due process violation, the Supreme Court has instructed courts to consider three factors: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The Gore decision is “ ‘instructive’ to courts considering the amount of punitive damages awarded in employment discrimination cases.” U.S. E.E.O.C. v.W & O, Inc., 213 F.3d 600, 614 (11th Cir.2000). In its subsequent decision in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418-429, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the Supreme Court applied and reiterated the importance of the three Gore factors. In applying the third Gore guidepost, courts should look to the amount of punitive damages authorized by other courts in similar cases, and the reasons the courts cited in justifying these awards. See, e.g., Lafate v. Chase Manhattan Bank (USA), 123 F.Supp.2d 773, 790 (D.Del.2000). The Supreme Court and other federal courts have also elaborated on how courts should apply the first and second Gore guideposts. In Campbell, the Supreme Court explained that the first Gore guidepost — the degree of reprehensibility of the defendant’s conduct — is the “ ‘most important indicium of the reasonableness of a punitive damages award.’ ” Campbell, 538 U.S. at 419, 123 S.Ct. 1513 (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589). Reprehensibility is judged by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evidenced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. The existence of any one of these factors weighing in favor of plaintiff may" }, { "docid": "11993215", "title": "", "text": "Ltd. v. Amana Co., 370 F.3d 824, 828 (8th Cir.2004). Rather, the Bank deliberately decided to seize JCB’s equipment, although it had never made loans against that specific collateral and although Machinery at the time had a zero balance on the principal and interest on its loan from the Bank. JCB demanded that the equipment be returned, but the Bank retained it nonetheless. When the Bank sold the equipment it knew that JCB asserted a priority security interest in it and had offered another method of sale, but the Bank nevertheless proceeded with the auction, obtaining less than full value for the equipment. Although JCB had demanded the proceeds from the auction, the Bank retained the funds for itself, placing them in a noninterest bearing account with the proceeds from other collateral. The ratio between the damage awards for conversion is approximately 1:1 ($1,100,000 compensatory and $1,150,000 punitive damages). See State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (suggesting that punitive damages equal to compensatory damages are within constitutional limits “[w]hen compensatory damages are substantial”). As neither party refers to comparable civil penalties for conversion, we do not consider that factor. See Asar-Brandt, 344 F.3d at 747 n. 16. We conclude that the jury award of punitive damages for the Bank’s conversion does not exceed due process limits. The $1,087,500 in punitive damages assessed by the jury for the Bank’s trespass is more troublesome. Although the Bank emphasizes the disparity between the $1 compensatory and punitive damages for its trespass, the nominal amount of the compensatory damages for that tort does not on its own preclude a punitive damages award of this size. Punitive damages may withstand constitutional scrutiny when only nominal or a small amount of compensatory damages have been assigned, even though the ratio between the two will necessarily be large. See Saunders v. Branch Banking & Tr. Co. of Va., 526 F.3d 142, 154 (4th Cir.2008) (collecting cases). The Supreme Court has “consistently rejected the notion that the constitutional line is marked by a simple mathematical formula.” Gore, 517 U.S. at 582, 116 S.Ct. 1589; State" }, { "docid": "11993202", "title": "", "text": "secured creditor” in “specific items” and some “accounts receivable.” The Bank also contends that §§ 2.11 and 3.4 of the plan limit JCB’s interests to prepetition collateral. While those sections establish JCB’s secured claim against Machinery’s estate, they simply do not address its interest in the reorganized debtor. We conclude that JCB had the senior security interest in the collateral under the terms of Machinery’s reorganization plan. Cf. In re Dow Coming Corp., 456 F.3d 668, 676 (6th Cir.2006) (confirmed plan to be interpreted using contract principles and unambiguous plan terms are to be enforced as written); accord In re Dial Bus. Forms, Inc., 283 B.R. 537, 541 (8th Cir. BAP 2002). The Bank’s objections to the findings that it was liable for trespass and conversion rest on its premise that it had the senior or sole security interest in the collateral. Because we reject that theory, the Bank cannot prevail on its arguments that it was permitted by virtue of its own security interest to enter onto JCB’s lot, remove the collateral, and possess the equipment under Missouri law. Accordingly, the district court did not err by denying the Bank’s motion for judgment as a matter of law. III. Although the Bank does not challenge the $1,100,000 in compensatory damages for conversion or the $1 nominal damages for trespass, it raises multiple objections to the punitive damages awarded to JCB: $1,087,500 for trespass and $1,150,000 for conversion. JCB answers that it presented sufficient evidence to support the submission and award of punitive damages, and that the amounts of the punitive damages awards do not violate the Bank’s due process rights. A. The Bank’s objects to the district court’s submission of the issue of punitive damages to the jury, and we review this decision for abuse of discretion. See Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 837 (8th Cir. 2005). Punitive damages are available for the torts of trespass and conversion under Missouri law, see Wright v. Edison, 619 S.W.2d 797, 803 (Mo.Ct.App.1981); Dayton Constr., Inc. v. Meinhardt, 882 S.W.2d 206, 209 (Mo.Ct.App.1994), but must be" }, { "docid": "11993232", "title": "", "text": "intertwined torts is state action that “furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Both torts were necessary steps in the Bank’s course of conduct to harm JCB, and it is reasonable for a State to consider them together in assessing whether a punitive damages award is excessive. Although “[tjrespass and conversion protect distinct legal rights,” ante, at 874, the majority itself recognizes that “the trespass was done for the purpose of seizing and selling JCB’s collateral;” indeed, it was done solely for that purpose. Accordingly, I agree that “[t]he Bank’s trespass was sufficiently reprehensible to warrant a substantial penalty.” Ante, at 876. Once it is recognized that a State may consider the purpose of the trespass in determining punitive damages, I do not think constitutional law dictates that the State may give partial weight to the resulting conversion (thus justifying punitive damages of $100,000 for trespass, despite only $1 in actual damages for the trespass standing alone), but may not fully consider the conversion in determining punitive damages for the trespass that enabled the conversion. Accepting that the State reasonably may consider the Bank’s course of conduct as a whole in assessing punitive damages, the relevant guideposts show that the punitive damages award is constitutional. See generally Gore, 517 U.S. at 575-85, 116 S.Ct. 1589. For the reasons stated in the majority’s analysis of reprehensibility, ante, at 875-76, the Bank’s conduct, viewed in the light most favorable to the verdict, supports an award of this magnitude under our precedents. Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 839-40 (8th Cir.2005); Asa-Brandt, Inc. v. ADM Investor Serv. Inc., 344 F.3d 738, 746-47 (8th Cir.2003). The ratio of punitive damages as a whole to compensatory damages for the interrelated torts is less than 2:1, and thus well within the ratios approved by the Supreme Court and our court. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991)" }, { "docid": "11993205", "title": "", "text": "enter the lot or to notify it of the entry, even though ATEC was aware that JCB was renting the lot and a representative of the Bank stated in his deposition that he “presume[d]” the machines had been moved there “by or for the benefit of JCB.” The lot was protected by a fence with locking gates and was obviously not open to the public. The Bank’s officer in charge of this matter testified at trial that he knew of the option of trying to obtain a replevin order from a court before a repossession but chose not to seek such an order in this case. As the trespass was willful, the issue of punitive damages could be submitted to the jury irrespective of the Bank’s mistaken belief that it had a superior interest allowing it to enter the fenced lot to repossess the machines, id., and was not an abuse of discretion. Trial evidence also supported the submission of punitive damages to the jury on JCB’s conversion claim. The Bank received JCB’s demand letter and suggestions for alternative ways of selling the equipment prior to the public auction arranged by the Bank. JCB’s communications put the Bank on notice that JCB claimed rights in the collateral, yet it chose to proceed with the sale anyway. There was evidence that the Bank’s officer in charge of this matter knew there were other means to take possession of the machines which would have protected JCB’s rights but chose not to use them. Testimony indicated that the Bank’s decision to proceed with the liquidation auction resulted in the sale of the equipment for less than full value. After the auction, the Bank knew that JCB disputed its right to the proceeds of the collateral. Yet it did not place the funds under joint control or in an escrow account. Because this evidence indicated with sufficiently high probability that the Bank seized and sold the machines with reckless disregard for JCB’s rights in them, the district court did not abuse its discretion in submitting the issue of punitive damages for conversion. The Bank" }, { "docid": "11993219", "title": "", "text": "a repair company which repossessed a bulldozer from a couple after they defaulted on payments for repairs on the machine. Perkins v. Dean Machinery Co., 211 S.W.3d 148, 148 (Mo.Ct.App.2007) (affirming punitive award); Perkins, 132 S.W.3d at 298-99 (underlying facts and actual damages). Although that award covered both trespass and conversion, it was significantly lower than the punitive damages JCB received for trespass alone. And while the Bank’s trespass was necessary for it to effect its conversion, a separate award punished that tort and compensated JCB for its loss on the sale. Under all the circumstances we conclude that the $1,087,500 awarded in punitive damages for the Bank’s trespass was beyond what due process will permit. When faced with an award which exceeds due process limits, it is appropriate to remit it to an amount which is “sufficiently punitive, but that does not violate notions of fundamental fairness.” Conseco Finan. Serv. Corp. v. North American Mortgage Co., 381 F.3d 811, 825 (8th Cir.2004). Neither the Bank nor JCB has suggested an alternate amount of punitive damages in the event that the award were found to be beyond constitutional bounds. JCB has not cited any comparable trespass cases with such a high ratio between the punitive damages and compensatory awards, but the Bank cited Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 563 N.W.2d 154,156 (1997), a trespass case in which punitive damages of $100,000 withstood constitutional scrutiny although the underlying compensatory award was nominal. The Bank’s citation of this case implies that it would have had notice that its conduct could lead to penalties of up to $100,000. See Gore, 517 U.S. at 574, 116 S.Ct. 1589 (“Elementary notions of fairness ... dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”). We conclude that in this case a reduction of the jury’s punitive damages award for trespass to one tenth the original amount would recognize the reprehensibility of the Bank’s trespass but not offend the constitutional concerns which" }, { "docid": "11993217", "title": "", "text": "Farm, 538 U.S. at 424-25, 123 S.Ct. 1513. As noted by the Court, a higher ratio “may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages.” State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (internal quotation omitted); see also Exxon Shipping Co. v. Baker, — U.S.-, 128 S.Ct. 2605, 2622, 171 L.Ed.2d 570 (2008) (“ ‘Thus an award of nominal damages ... is enough to support a further award of punitive damages, when a tort, ... is committed for an outrageous purpose, but no significant harm has resulted.’ ”) (quoting 4 Restatement § 908, Comment c, p. 465). Our court as well as the Missouri courts have affirmed punitive damages supported by only nominal compensatory damages. See Asa-Brandt, 344 F.3d at 743 & 747 (affirming $1.25 million on a breach of fiduciary duty claim with nominal damages); Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 58 (Mo. banc 1981) (collecting cases). The issue here of course is whether in this case the punitive damages award for the Bank’s trespass is constitutionally excessive. See Saunders, 526 F.3d at 154. The Bank directed ATEC to enter JCB’s fenced lot without permission or notification, and the trespass was done for the purpose of seizing and selling JCB’s collateral. The Bank’s trespass was sufficiently reprehensible to warrant a substantial penalty. See Diesel Machinery, 418 F.3d at 839-40; Asar-Brandt, 344 F.3d at 746-47; cf. Gore, 517 U.S. at 575, 116 S.Ct. 1589 (reprehensibility is “perhaps the most important indicium of the reasonableness of a punitive damages award”). The state has a legitimate interest in punishing and deterring such trespasses, as well as the risk of violent confrontation which may arise from them. Missouri authorizes criminal fines of $2000 for trespass, or double a corporation’s gain from the offense, as well as a term of imprisonment of up to six months. See Mo.Rev.Stat. §§ 569.140, 560.021.1, 558.011(6). The highest punitive damage award we found in a comparable Missouri case was $400,-000 — based on actual damages of $25,000 for conversion and $5,000 for trespass— against" }, { "docid": "11993213", "title": "", "text": "on its repossession of equipment located on that lot. Although related, the wrongful acts leading to the Bank’s trespass and conversion were not identical. Missouri courts have required separate punitive damages instructions for each tort under very similar circumstances. See Weldon, 638 S.W.2d at 199. The district court’s separate treatment of the torts at trial was consistent with Missouri law, and we conclude that it is similarly appropriate to consider the individual punitive damage awards separately on the Bank’s challenge on appeal. We review de novo the district court’s ruling on the constitutionality of the punitive damage awards. Cooper Indus., Inc. v. Leathemnan Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). Although states have broad discretion to impose punitive damages for the legitimate state purposes of punishment and deterrence, those awards are subject to both procedural and substantive limitations under the due process clause of the fourteenth amendment. See State Farm, Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); see also BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Our review of the constitutionality of punitive damage awards is guided by a three factor test set by the Supreme Court: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418, 123 S.Ct. 1513, citing Gore, 517 U.S. at 575, 116 S.Ct. 1589. In converting JCB’s property the Bank acted with “callous disregard” of JCB’s rights, and the reprehensibility of its conduct was comparable to the conduct which supported punitive damages in prior business cases. Diesel Machinery, 418 F.3d at 840; see also Asa/Brandt, Inc. v. ADM Investor Servs., Inc., 344 F.3d 738, 746-47 (8th Cir.2003). The Bank’s tortious conduct involved in the conversion was not “accidental or inadvertent.” Eden Elec.," }, { "docid": "11993203", "title": "", "text": "the equipment under Missouri law. Accordingly, the district court did not err by denying the Bank’s motion for judgment as a matter of law. III. Although the Bank does not challenge the $1,100,000 in compensatory damages for conversion or the $1 nominal damages for trespass, it raises multiple objections to the punitive damages awarded to JCB: $1,087,500 for trespass and $1,150,000 for conversion. JCB answers that it presented sufficient evidence to support the submission and award of punitive damages, and that the amounts of the punitive damages awards do not violate the Bank’s due process rights. A. The Bank’s objects to the district court’s submission of the issue of punitive damages to the jury, and we review this decision for abuse of discretion. See Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 837 (8th Cir. 2005). Punitive damages are available for the torts of trespass and conversion under Missouri law, see Wright v. Edison, 619 S.W.2d 797, 803 (Mo.Ct.App.1981); Dayton Constr., Inc. v. Meinhardt, 882 S.W.2d 206, 209 (Mo.Ct.App.1994), but must be shown by clear and convincing evidence. See, e.g., Perkins v. Dean Machinery Co., 132 S.W.3d 295, 299 (Mo.Ct.App.2004), citing Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996). A submissible case for punitive damages is made if the “evidence and the inferences drawn therefrom are ‘sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing clarity — that is, that it was highly probable — that the defendant’s conduct was outrageous because of evil motive or reckless indifference’ ” to the rights of others. Perkins, 132 S.W.3d at 299 (citation omitted); see also Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 477 (Mo.Ct.App. 2005). Under Missouri law, if a “trespass is intentional and done without cause or excuse, it is willful and warrants a submission of punitive damages,” even if the defendant acted under a mistaken belief of law or fact. Wright, 619 S.W.2d at 803. The Bank had ATEC enter JCB’s fenced lot without permission. Neither the Bank nor ATEC contacted JCB for authorization to" }, { "docid": "11993189", "title": "", "text": "MURPHY, Circuit Judge. JCB, Inc. brought this action against Union Planters Bank, N.A. (Bank) seeking a declaratory judgment and damages for trespass and conversion for unilateral removal and sale of equipment which had been purchased by their debtor, Machinery, Inc. and was subject to their competing security interests. The district court referred some of the issues in dispute to the bankruptcy court which determined that JCB had the senior security interest in the equipment and granted it partial summary judgment. Issues of damages were tried to a jury in the district court, resulting in a verdict in favor of JCB. The jury awarded JCB $1,446,500 in compensatory damages and $1,150,000 in punitive damages for conversion, as well as $1 compensatory and $1,087,500 punitive damages for trespass. After denying the Bank’s post trial motions, the district court entered judgment for JCB in the amount of the jury verdict. The Bank appeals. We affirm in part and reverse in part. I. Both JCB and the Bank were creditors of Machinery, Inc. (Machinery). JCB manufactures and distributes heavy equipment, such as backhoe loaders and excavators, as well as parts. Machinery was an authorized dealer of JCB products in St. Louis, Missouri. Under their 1996 dealership agreement and inventory security agreement, Machinery received JCB equipment, machines, and parts on credit as part of a floorplan financing arrangement. In return, Machinery granted JCB a purchase money security interest in the equipment, including any which Machinery might acquire after the agreements were signed. As a result of a line of credit extended to Machinery in 2000 the Bank obtained a security interest in Machinery’s inventory and accounts and certain other items. While the Bank made no new loans to Machinery after 2001 and the principal and interest on its loan had been fully paid off by July 2003, Machinery still had contingent obligations to it related to another lawsuit. Machinery ran into financial trouble and filed a voluntary Chapter 11 bankruptcy petition in 2001. The bankruptcy court confirmed Machinery’s plan for reorganization later that year. While Machinery was in bankruptcy, JCB continued to sell it inventory" }, { "docid": "11993220", "title": "", "text": "damages in the event that the award were found to be beyond constitutional bounds. JCB has not cited any comparable trespass cases with such a high ratio between the punitive damages and compensatory awards, but the Bank cited Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 563 N.W.2d 154,156 (1997), a trespass case in which punitive damages of $100,000 withstood constitutional scrutiny although the underlying compensatory award was nominal. The Bank’s citation of this case implies that it would have had notice that its conduct could lead to penalties of up to $100,000. See Gore, 517 U.S. at 574, 116 S.Ct. 1589 (“Elementary notions of fairness ... dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”). We conclude that in this case a reduction of the jury’s punitive damages award for trespass to one tenth the original amount would recognize the reprehensibility of the Bank’s trespass but not offend the constitutional concerns which have been articulated by the Supreme Court. An award of $108,750 in punitive damages would punish the Bank’s trespass and deter such conduct in the future, while not violating the Bank’s due process rights. This amount is also consistent with a comparable case cited by the Bank. We conclude that the amount of punitive damages for the Bank’s trespass should be remitted to $108,750. IV. The Bank objects to the interest awarded to JCB on the conversion claim, challenging the district court’s jury instructions and evidentiary rulings which JCB defends. We normally review a district court’s jury instructions for abuse of discretion, limiting our consideration to whether the instructions fairly and accurately present the evidence and law to the jury given the issues in the case. Eden Elec., 370 F.3d at 827. If the challenge has not been preserved for review by objection below, however, we apply a plain error standard, reversing only when the error would result in a miscarriage of justice if left uncorrected. See Right v. Auto Zone, Inc., 494 F.3d 727," }, { "docid": "11993228", "title": "", "text": "Planters Bank, N.A. I would therefore affirm the judgment of the district court. In considering whether the punitive damages were excessive, the district court concluded that the Bank’s unlawful trespass and conversion were “inextricably intertwined,” because the Bank trespassed on the property of JCB, Inc., for the sole purpose of taking possession of JCB’s equipment. The district court thus considered the two torts together when comparing the punitive damages (i.e., $1,150,000 for conversion and $1,087,500 for trespass) with the compensatory damages (i.e., $1,450,000 for conversion and $1 in nominal damages for trespass). The court then concluded that “the jury’s punitive damages award of less than twice the actual damages was both reasonable and proportionate, considering the egregious nature of [the Bank’s] conduct.” As the case comes to us, the Bank does not challenge the district court’s application of Missouri law, ante, at 875 n. 8, so we presume that Missouri authorizes a punitive damages award of this amount under these circumstances. “In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The Bank raises no claim that the procedures applied in this case were unfair, and a judgment that is a product of fair procedures “is entitled to a strong presumption of validity.” TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 457, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (plurality opinion); Gore, 517 U.S. at 586-87, 116 S.Ct. 1589 (Breyer, J., concurring). In conducting its substantive due process analysis, the majority decides to examine separately the punitive damages awards for conversion and trespass, and thus emphasizes a comparison between the punitive damages award of $1,087,500 for trespass and a nominal damage award of $1. The majority never really explains, however, why this divide-and-conquer approach is dictated by federal constitutional law. It reasons instead that separate consideration of the two damages awards for constitutional purposes is “appropriate,” because the use of" } ]

[ { "docid": "18502871", "title": "", "text": "Although we acknowledge the possibility that the MESC-JOSI dispute may ultimately have no effect on the debtor, we cannot conclude that it will have no conceivable effect. Accordingly, we find that subject matter jurisdiction exists in the bankruptcy court over the MESC-JOSI dispute. C. 28 U.S.C. § 157 Having decided that subject matter jurisdiction exists over this proceeding, we must now determine the extent of that jurisdiction. See In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). Our analysis turns to 28 U.S.C. § 157, the response of Congress to the Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Section 157 does not give bankruptcy courts full judicial power over all matters over which the district courts have jurisdiction under section 1334. Except for the bankruptcy petition itself, section 157 divides all proceedings into two categories: Subsection 157(b)(1) gives bankruptcy judges the power to determine “all core proceedings arising under title 11, or arising in a case under title 11” and to enter appropriate orders and judgments. Subsection 157(c)[ (1) ] gives the bankruptcy judge the limited power to hear “a proceeding that is not a core proceeding but that is otherwise related to a case under title 11” and to submit proposed findings of fact and conclusions of law to the district court subject to de novo review. In re Wood, 825 F.2d at 95 (quoting 28 U.S.C. § 157(b)(1) and (c)(1)). Thus, to determine whether the bankruptcy court had the power to enter the order that MESC appeals, the essential distinction is whether this action is a core or non-core proceeding. While we determined that this matter was at least “related to” the bankruptcy, that determination was for the purpose of determining whether the matter falls within bankruptcy jurisdiction, and we did not need to distinguish between each of the section 1334(b) categories for that purpose. However, the distinction between categories is relevant for purposes of section 157: Subsection 157(b)(1) vests full judicial power in bankruptcy courts over “core proceedings arising under title" } ]

[ { "docid": "23673426", "title": "", "text": "ORDER REGARDING MOTION TO REOPEN CHAPTER 7 BANKRUPTCY MARGARET A. MAHONEY, Bankruptcy Judge. This matter comes before me upon the Motion of Marilyn Karamitsos to reopen her Chapter 7 bankruptcy case. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157 and the Order of Reference of the District Court. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Debtor has moved under 11 U.S.C. § 350(b) and Bankruptcy Rule 5010 for reopening of this discharged no asset Chapter 7 case for the sole purpose of adding a creditor to avoid the possibility of future litigation. Debtor is in effect requesting to discharge a potential creditor. Motions to reopen Chapter 7 cases to amend schedules to include omitted creditors are filed with some frequency. I am writing this opinion to dispel the mistaken notion debtors and creditors and their counsel have about the effect of such a motion. The filing of an amended creditor schedule after discharge has been granted in a no asset Chapter 7 case has absolutely no effect on the dischargeability of debt. In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987). Determination regarding such a discharge is properly brought in bankruptcy court through an adversary proceeding commenced by the filing of a complaint. A discharge under 11 U.S.C. § 727 acts as a complete discharge of all debts. Sec tion 523(a) delineates debts that are excepted from discharge. The scope of the discharge is final when entered. Therefore, a judicial determination of which debts, if any, are to be excepted from discharge is required. Reopening a case to allow amendment of schedules is futile. The debt in question is either discharged or excepted from discharge based on a judicial analysis of 11 U.S.C. § 523 (a)(3). Reopening a case to list a creditor after discharge does not give a creditor an extension of time in which to file a claim. In fact, in a no asset Chapter 7 case, there is never a claim filing period. Reopening a case to list a creditor does not extend the" }, { "docid": "6585506", "title": "", "text": "MEMORANDUM JOHN C. MINAHAN, Jr., Bankruptcy Judge. In this adversary proceeding, plaintiff seeks a declaration that its obligation on a student loan is dischargeable under 11 U.S.C. § 523(a)(8). The limited question now considered is whether the bankruptcy court has subject matter jurisdiction to enter judgment against plaintiff upon defendant’s counterclaim seeking judgment for the unpaid balance of the loan. FACTS Plaintiff, JoAnn Kinney, a debtor in this Chapter 7 bankruptcy case, commenced this adversary proceeding seeking a determination that a $3,083.54 student loan debt is dischargeable in bankruptcy. The defendant, Higher Education Assistance Foundation (“HEAF”) filed an answer and counterclaim. The counterclaim seeks a declaration that the student loan is not dis-chargeable and a judgment against the plaintiff in the amount of the debt. Plaintiff asserts that the bankruptcy court does not have subject matter jurisdiction over the counterclaim. DISCUSSION I conclude that the counterclaim is a core proceeding over which the court has jurisdiction under 28 U.S.C. §§ 157(a) and 1334. In addition, if HEAF’s counterclaim is regarded as a compulsory counterclaim, it is within the court’s ancillary jurisdiction. Under 28 U.S.C. § 1334, federal district courts are granted subject matter jurisdiction over all cases under title 11, and all civil proceedings arising under title 11, or arising in or related to cases under title 11. Each federal district court may refer all cases under title 11 or arising in or related to a case under title 11 to the bankruptcy court pursuant to 28 U.S.C. § 157(a). The United States District Court for the District of Nebraska has referred all such cases to the United States Bankruptcy Court for the District of Nebraska. See Local District Court Rule 51. Under 28 U.S.C. § 157(b), bankruptcy judges are granted authority to hear and determine “all cases under title 11 and all core proceedings arising under title 11.” Under 28 U.S.C. § 157(b)(2)(B) and (I), core proceedings include allowance or disallowance of' claims against the estate, and determinations as to the dischargeability of particular debts. I conclude that HEAF’s counterclaim is a core proceeding because it involves allowance and" }, { "docid": "4734862", "title": "", "text": "it was correct in granting summary judgment in favor of the Debtor. Finally, the Debtor argues that the Bank has violated Bankruptcy Rule 9011 because the adversary proceeding was not well-grounded in fact when the complaint was filed. The Bank responds that this request is not properly brought before the Court without the filing of a motion and is not germane to the motion to alter the judgment. While the Debtor should have filed a formal motion, this procedural oversight will not preclude the Court from determining the substance of the requested relief in order to circumvent any further satellite litigation arising from this adversary proceeding. Bankruptcy Rule 9011(a) provides in relevant part: Every petition, pleading, motion ... served or filed in a case under the Code on behalf of a party represented by an attorney ... shall be signed- The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. Fed.R.Bankr.P. 9011(a). Bankruptcy Rule 9011 and Federal Rule 11 of Civil Procedure are analogous and the authorities construing Rule 11 are applicable to the case at bar. Rule 9011 rather than Rule 11 (as recently amended effective December 1, 1993) applies in this forum. The current version of Bankruptcy" }, { "docid": "10255194", "title": "", "text": "arising under title 11 to the bankruptcy court to the maximum extent permitted by 28 U.S.C. § 157(a). Bankruptcy judges may hear and enter final judgments in all cases arising under title 11 and in all core proceedings. Related, non-core proceedings may also be referred to the bankruptcy judge, but not for final disposition, unless the parties expressly consent. Here, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court, which may review de novo any matter objected to in a timely fashion. 28 U.S.C. § 157(c)(1) and (2). Section 157 of title 28 does not explicitly define “core proceedings,” but provides a non-exclusive list of matters within its embrace. 28 U.S.C. § 157(b)(2)(aHo). A proceeding is core pursuant to § 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case. In re Wood, 825 F.2d 90, 97 (5th Cir.1987); see also In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.1990). The gravamen of this adversary proceeding is such a core proceeding. This Court is asked by the Debt- or to declare that any claim of MESC has been discharged by the confirmation of the chapter 11 plan herein, and that MESC is enjoined from seeking to collect on any pre-confirmation debt. Although MESC’s tax assessment is based on state law, because the assessments relate to both pre-petition and pre-confirmation tax years, the ability to collect on that debt goes to the validity of the plan’s confirmation, which purports to discharge debts not provided for therein. Therefore, the gravamen of the Debtor’s complaint strikes at the heart of this Court’s power to confirm and discharge under the Code. Pursuant to Bankruptcy Rule 3020, bankruptcy courts retain jurisdiction over the post-confirmation administration of the estate until the entry of a final decree. See In re Almarc Corp., 94 B.R. 361, 364 (Bankr.E.D.Pa.1988); Bankr.Rule 3022. Bankruptcy courts retain jurisdiction over a chapter 11 case after confirmation, “to protect its [confirmation] decree, to prevent interference" }, { "docid": "18740659", "title": "", "text": "for what she contends was the improper removal of this proceeding from state court to this Court. In particular, she focuses on the following representations in the Notice of Removal: that the bankruptcy court has jurisdiction over the proceeding, that it arises under title 11 and is related to a bankruptcy case, that it eoncerns matters affecting the administration of the bankruptcy estate, and that certain of the claims alleged in the Complaint may belong to the estate rather than to Lorence. Rule 9011 provides, in pertinent part, as follows: ... The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document;’ that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal or existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case.... If a document is signed in violation of this rule, the court ... shall impose on the person who signed it, the represented party, or both, an appropriate sanction.... Lorence contends that the Notice of Removal was filed in violation of rule 9011 and that defendants should be sanctioned. She contends that the law is clear that this Court has no jurisdiction over the proceeding and that the proceeding is not a core proceeding. Having concluded to the contrary on both counts, the Court must necessarily deny Lo-rence’s motion. The only representations in the Notice of Removal with which the Court disagrees is that the proceeding is one arising under title 11 or is related to a case under title 11. However, the Court does not find the law sufficiently clear even on this point to render defendants liable for sanctions under rule 9011. CONCLUSION Lorence’s motion for abstention and remand and her motion for sanctions under rule 9011 of the Federal Rules of" }, { "docid": "4771942", "title": "", "text": "MEMORANDUM OF DECISION AND ORDER IMPOSING SANCTIONS AGAINST DEBTOR AND DEBTOR’S ATTORNEY LYNNE RIDDLE, Bankruptcy Judge. On January 10, 1992, this Court entered an Order to Show Cause (“OSC”) why this case should not be dismissed pursuant to 11 U.S.C. § 707(b), as a substantial abuse of the provisions of Chapter 7 of the Bankruptcy Code. Debtor’s ex-wife and primary creditor, Ellen Boyd Sturgis, filed a joinder and evidence in support of the OSC, together with a request for sanctions under Bankruptcy Rule 9011. This Court found that the petition was filed in bad faith and for an improper purpose, and that the grant of a discharge to Debtor would be a substantial abuse of Chapter 7. The case was dismissed with a two-year bar to refiling and the Court reserved ruling on the request for sanctions. Findings of Fact and Conclusions of Law with respect to § 707(b) dismissal were entered March 31, 1992. Those findings and the evidence on which they are based are relevant to the imposition of sanctions and are incorporated herein by reference. In re Rainbow Magazine, Inc., 136 B.R. 545, 551 n. 10 (9th Cir. BAP 1992). Specifically, this Court found that: (1) Debtor failed to disclose interests in property and transfers of property in the petition. (2) Debtor had the ability to pay his debts and to fund a Chapter 13 plan. Mr. Powers did not inform Debtor of the availability of Chapter 13 and falsely certified that he had so informed Debtor. (3) At the time of preparing the petition Mr. Powers did not make reasonable inquiry into Debtor’s assets. After receiving additional memoranda and declarations regarding the amount of costs incurred, the issue of sanctions was taken under submission. JURISDICTION The Court has jurisdiction of this motion pursuant to 28 U.S.C. § 1334 (district courts have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (district courts may refer all Title 11 cases and proceedings to the bankruptcy judges for the district), and General Order No. 266, dated October 9, 1984 (referring all Title 11 cases" }, { "docid": "4748194", "title": "", "text": "cases under [the Bankruptcy Code],” 28 U.S.C. § 1334(a), and that-they “shall have original but not exclusive jurisdiction of all civil proceeding arising under [the Bankruptcy Code], or arising in or related to cases under [the Bankruptcy Code],” 28 U.S.C. § 1334(b). Under this jurisdictional structure, the bankruptcy “case” over which the District Court has exclusive jurisdiction is only a framework for the present and future invocation of the federal courts’ jurisdiction over the debtor and its financial affairs. The bankruptcy case is commenced by the filing of a bankruptcy petition, but the “case” is not an adversarial proceeding in and of itself. Under the jurisdiction conferred by the pendency of the bankruptcy case, however, parties in interest may commence proceedings to obtain judicial determinations of contested matters. These judicial proceedings have the attributes of various stages of civil litigation in non-bankruptcy forums. In re Arctic Enterprises, Inc., 68 B.R. 71, 76 at n. 4 (D.Minn.1986); In re Northwest Cinema Corp., 49 B.R. 479, 480 at n. 4 (Bankr.D.Minn.1985). For the purposes of the federal courts’ bankruptcy jurisdiction, judicial proceedings in a bankruptcy case are divided into two classes: “core proceedings,” as illustrated in 28 U.S.C. § 157(b)(2), and “proceedings related to a case under [the Bankruptcy Code].” 28 U.S.C. § 157(b)(2)(A)-(0) contain a non-exclusive “laundry list” of various sorts of core proceedings. Title 28 does not define the phrase “core proceeding.” In general, a core proceeding is a legal dispute between parties in interest to a bankruptcy ease, one of whom is almost always the debtor. As fixed by the very nature of the parties’ relationships to the debtor and the relief requested, core proceedings are those intrinsic to the adjustment of debtor-creditor relationships involved in bankruptcy relief. Gaslight Club, Inc. v. Official Creditors Committee, 46 B.R. 209, 211 (N.D.Ill.1985). Similarly, Title 28 does not define the term “civil proceeding ... related to [a] case under title 11”; nor does it give any examples of a related proceeding. The Eighth Circuit has held that the test for determining whether a civil proceeding is related to bankruptcy is whether the" }, { "docid": "11871824", "title": "", "text": "relief may be granted. The motions have been heard and are now ready for disposition. -II- THE GRAVAMEN OF THE COMPLAINT Debtor’s complaint is curiously drafted and at times confusing. Under standing its primary thrust will facilitate our analysis and resolution of the pending motions to dismiss by making clear what debtor is not attempting to accomplish in this adversary action. Debtor asserts in the complaint that jurisdiction over this adversary action is based on 28 U.S.C. § 157(b)(2)(I) and (0) and on 11 U.S.C. § 505(a)(1). Section 157 of title 28 provides in part as follows: (b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11.... (2) Core proceedings include, but are not limited to — •.... (I) determinations as to the discharge-ability of particular debts; [and] ... (0) other proceedings affecting ... the adjustment of the debtor-creditor relationship.... 18 U.S.C. § 157. These provisions, when read in isolation from 11 U.S.C. § 505(a)(1), suggest that debtor seeks a determination that the debt he owes IRS which arises out of the above Form 1099-C is dischargeable in bankruptcy. Debtor also asserts, however, that jurisdiction is based on § 505(a)(1) of the Bankruptcy Code, which provides as follows: (a) Except as provided in paragraph (2) of this subsection, the court may determine the amount or legality of any tax, fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not adjudicated by a judicial or administrative tribunal of competent jurisdiction. 11 U.S.C. § 505(a). Read in isolation, this provision suggests that debtor is seeking a determination concerning the amount or legality of the additional federal income tax, penalties and interest IRS claims debtor owes for the year 2005. While this latter endeavor appears to he squarely within the scope of 28 U.S.C. § 157(b)(2)(0), it is not obvious that it also lies within the scope of 28 U.S.C. § 157(b)(2)(I). An action to determine the amount or legality of the additional tax debt IRS claims debtor" }, { "docid": "4771943", "title": "", "text": "herein by reference. In re Rainbow Magazine, Inc., 136 B.R. 545, 551 n. 10 (9th Cir. BAP 1992). Specifically, this Court found that: (1) Debtor failed to disclose interests in property and transfers of property in the petition. (2) Debtor had the ability to pay his debts and to fund a Chapter 13 plan. Mr. Powers did not inform Debtor of the availability of Chapter 13 and falsely certified that he had so informed Debtor. (3) At the time of preparing the petition Mr. Powers did not make reasonable inquiry into Debtor’s assets. After receiving additional memoranda and declarations regarding the amount of costs incurred, the issue of sanctions was taken under submission. JURISDICTION The Court has jurisdiction of this motion pursuant to 28 U.S.C. § 1334 (district courts have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (district courts may refer all Title 11 cases and proceedings to the bankruptcy judges for the district), and General Order No. 266, dated October 9, 1984 (referring all Title 11 cases and proceedings to the bankruptcy judges of the Central District of California). The motion is a core proceeding. 28 U.S.C. § 157(b)(2)(A). DISCUSSION Bankruptcy Rule 9011 authorizes the imposition of sanctions against a party and/or an attorney who signs a pleading which is not well-grounded in fact and warranted by law, or is filed for an improper purpose. If the Rule is violated, the court must impose an appropriate sanction. In re Webre, 88 B.R. 242, 245 (9th Cir. BAP 1988); In re Film Ventures Int’l, Inc., 89 B.R. 80, 86 (9th Cir. BAP 1988). Debtor disputes both the propriety of sanctions and the amount requested by Mrs. Sturgis. 1. Imposition of Sanctions There are two separate bases for sanctions under Rule 9011: (1) a frivolous pleading filed without reasonable inquiry into whether it is well-grounded in fact and warranted by law, and (2) a pleading interposed for an improper purpose. In re Rainbow Magazine, Inc., 136 B.R. 545, 550 (9th Cir. BAP 1992) (citing Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th" }, { "docid": "18602331", "title": "", "text": "to reinvigorate the Mall. On the basis of this information the court concluded that Park Place had no chance for a successful rehabilitation in Chapter 11. The court therefore concluded that Park Place’s bankruptcy case was serving primarily as a basis for federal jurisdiction of the lender liability suit it had filed against Heller, and granted Heller’s motion to dismiss pursuant to 11 U.S.C. § 1112(b). Jurisdiction United States District Courts have subject matter jurisdiction over cases under Title 11 and proceedings arising under, arising in, or related to proceedings under Title 11. 28 U.S.C. § 1334(a), (b). Each district court is specifically authorized to refer such proceedings to the bankruptcy judges for the district. 28 U.S.C. § 157(a). The United States District Court has made such a referral pursuant to local District Rule 2.33. In core proceedings that arise under or arise in Title 11 a bankruptcy judge is authorized to hear and determine the proceeding. 28 U.S.C. § 157(b)(1). A motion to award sanctions is a core proceeding under 28 U.S.C. § 157(b)(2)(A). In re Memorial Estates, Inc., 116 B.R. 108 (N.D.Ill.1990). Discussion Bankruptcy Rule 9011 provides in part: Every petition, pleading, motion and other paper served or filed in a case under the Code on behalf of a party represented by an attorney ... shall be signed by at least one attorney of record in the attorney’s individual name, whose office address and telephone number shall be stated. ... The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation. Bankruptcy Rule 9011 is essentially identical to Federal Rule of Civil Procedure 11. Cases interpreting Rule 11 are useful precedent when construing" }, { "docid": "18623684", "title": "", "text": "action. However, even if the time limits do not apply to actions arising out of the debtor’s post-petition conduct, it is clear that § 523 and Rule 4007 contemplate some form of notice and hearing on the issue of dis-chargeability. There was none in this case. The bankruptcy court made no findings on the issue of dischargeability and our review of the record indicates that the issue was never raised or argued to the bankruptcy court. The bankruptcy court’s judgment designating the sanctions as non-dischargeable was an abuse of discretion. The bankruptcy court was also without authority to order the sanction levied against Smith non-dischargeable sanctions. The bankruptcy court may only determine the dischargeability of debts owed by a debtor who has sought the protection of the bankruptcy laws. Smith is not such a person. E. Rule 11 Sanctions Smith claims that the district court erred in awarding sanctions under Fed.R.Civ.P. 11 for a frivolous appeal of the bankruptcy court’s decision. He argues that the district court was without jurisdiction to issue the sanctions since a notice of appeal to this court had been filed at the time the Bank moved for sanctions. Alternatively, he argues that the district court abused its discretion in awarding sanctions since it reversed a portion of the bankruptcy court’s sanctions award. Several of the issues examined by the district court were not frivolous. The district court’s award of attorney’s fees as sanctions under Rule 11 was improper. We need not discuss the jurisdictional issue. IV In sum, the bankruptcy court properly reopened the estate; this action is a core proceeding under 28 U.S.C. § 157; the bankruptcy court properly awarded the attorney’s fees against Case pursuant to the attorney’s fees provision in the promissory note and properly awarded the attorney’s fees related to the bankruptcy proceeding against Smith pursuant to Bankruptcy Rule 9011, 28 U.S.C. § 1927 and the inherent power of the Court; the bankruptcy court erred in determining that these sanctions were non-dischargeable; and the district court erred in imposing sanctions against Smith under Fed.R.Civ.P. 11. We AFFIRM that portion of the" }, { "docid": "5135001", "title": "", "text": "liquidation of the assets of the estate. Id. at 10-12. Under 28 U.S.C. §§ 157(b)(2)(A), (O), where a proceeding concerns the administration of the estate or affects the liquidation of the assets of the estate, it is a core proceeding. Hence, Judge Shadur held that the Rule 9011 determination was a core proceeding. We agree. We hold that a Rule 9011 determination as to whether sanctions are warranted is a core proceeding subject to appellate review. We believe that any other interpretation would seriously hamper the bankruptcy court in its administration of the estate and would provide additional methods of multiplying litigation for those seeking to hinder and delay the proceedings in the bankruptcy court. Thus, we must consider the bankruptcy court’s imposition of Rule 9011 sanctions against Savage under the standards of an appeal of a core proceeding. Rule 9011, by its express terms, permits the imposition of sanctions against an attorney and/or a party represented before the court, for signing papers filed with the court which are not warranted by existing law or good faith argument for its extension, modification or reversal or which are interposed to harass, delay, or increase the cost of litigation. The bankruptcy court found that numerous pleadings in this case were interposed to harass and delay, and awarded sanctions. It could, therefore, sanction the attorney filing those pleadings and his client. See, e.g., In re Eighty South Lake, Inc., 63 B.R. 501, 510-512 (Bankr.C.D.Cal.1986) (sanctioning debtor and the individual who ran the debtor, where testimony showed that the debtor acted through the principal, the principal had full knowledge of the facts, and his testimony showed that he plotted the strategy causing the delays, was fully involved in its implementation, and it was primarily his misconduct and voluntary absences from the jurisdiction that disrupted the discovery process), affirmed, 81 B.R. 580 (9th Cir. BAP 1987). The problem with the bankruptcy court’s imposition of sanctions upon Savage is that Savage is neither an attorney nor a party (Cerneo is the party) and signed none of the pleadings which the court found objectionable. Further, there is" }, { "docid": "13078118", "title": "", "text": "Brands, Inc., 158 B.R. at 178. The bankruptcy court also must determine whether 28 U.S.C. § 1334(c)(2) applies. The district court, and thus the bankruptcy division of the district court, must abstain from hearing any core or non-core “proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section,” if the “action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.” 28 U.S.C. § 1334(c)(2). If the proceeding falls under 28 U.S.C. § 1334(c)(2), then the district court must abstain and remand the case to the state court. If the claim is a non-core proceeding otherwise related to a title 11 ease, but it does not fall within 28 U.S.C. § 1334(c)(2), then mandatory abstention does not apply and the bankruptcy court may submit findings of fact and conclusions of law to the district court, which may render the final ruling. C. TEST FOR DETERMINING WHETHER RELIEF FROM THE AUTOMATIC STAY IS APPROPRIATE Pursuant to 11 U.S.C. § 362, the filing of a bankruptcy petition imposes an automatic stay of all litigation currently pending against the debtor. 11 U.S.C. § 362(a) fur ther provides that either party, creditor or debtor, may move for relief from the automatic stay. 28 U.S.C. § 157(b)(2)(G) states that a motion for relief from the automatic stay is a “core” proceeding; thus, since it arises under title 11, the bankruptcy court has jurisdiction to hear the motion. The bankruptcy court may terminate, annul, modify, or condition the automatic stay. 11 U.S.C. § 362(d). Relief “shall” be granted, however, upon notice and motion if “cause” exists. 11 U.S.C. § 362(d)(1). Although “cause” is not clearly defined and should be analyzed case-by-ease, the Ninth Circuit has held that cause may exist for relief if the district court may or must abstain from deciding the issues. In" }, { "docid": "13781247", "title": "", "text": "MEMORANDUM OF DECISION PAUL MANNES, Chief Judge. Before the court is a Complaint to Determine Dischargeability of Debt filed by Hecht’s, a Division of the May Department Stores Company (“Hecht’s”). Plaintiff seeks a ruling that $732.16 in unpaid charges be declared nondischargeable. This court has jurisdiction pursuant to 28 U.S.C. § 1334 (District Courts have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) and Maryland District Court Local Rule 402 (all cases under Title 11 as proceedings arising under Title 11 or arising in or related to cases under Title 11 are deemed referred to the Bankruptcy Judges of this District). This action is a core proceeding under 28 U.S.C. § 157(b)(2)(I). BACKGROUND The debtors, Carlos Valdes and Sheila C. Valdes, filed a joint petition under Chapter 7 of the Bankruptcy Code on November 14, 1994. As of the date of filing, Mr. Valdes owed $1,134.93 to the plaintiff, $713.16 of this debt resulted from five charges made between August 28, 1994, and September 21, 1994, on Mr. Valdes’ Hecht’s credit card. The purchases consisted of twin mattresses, cookware, a television set, a handbag, and clothing. Plaintiff named Sheila C. Valdes as a defendant. It offered no evidence of any involvement on her part in the purchases. Only at final argument did plaintiffs counsel state, “We are only pursuing Carlos at this point” (Transcript, p. 27). Counsel was unable to point to a scintilla of evidence justifying her inclusion as a defendant. Bankruptcy Rule 9011(a) appears applicable. Plaintiff pleaded that the debtors made these purchases on “their” Hecht’s credit card while intending not to repay the debt. Plaintiff argued that these purchases were made by Mr. Valdes when he knew or should have known that such debt could not be repaid. Therefore, plaintiff argues the debt must be excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A). In support of this contention, the plaintiff relies heavily on the fact that, at the time the debtors filed this bankruptcy case, their combined income was only $3,368.38 and their total monthly liabilities amounted to $3,427.00. Plaintiff" }, { "docid": "1171377", "title": "", "text": "(a) Except as provided in subsection (b) of this section the district courts shall have original and exclusive jurisdiction of all cases under title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or relating to cases under title 11. Additionally, 28 U.S.C. § 1334(d) as amended by the Act states as follows: (d) the district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of the estate. The Act further provides that these matters shall be referred to the bankruptcy judges. 28 U.S.C. § 157(a). Furthermore, 28 U.S.C. § 157(b)(1) provides that the bankruptcy judge has referred jurisdiction from the district court to determine all cases under title 11 and all core proceedings thereunder or arising in a case under title 11. Additionally, the bankruptcy court has jurisdiction over a noncore matter if it is otherwise related to a case under title 11. 28 U.S.C. § 157(c)(1). The Court finds it unnecessary at this point to determine if this adversary proceeding is a core or noncore proceeding. The only issue before the Court is whether it has jurisdiction to hear the adversary proceeding. The Court finds that it does have jurisdiction pursuant to 28 U.S.C. § 1334(d). Pike is a creditor of the debt- or’s estate. The contract on which the claim is based in the adversary proceeding is property of the estate. Even though Pike was listed as a creditor by amendment, the amendment relates back to the date of the filing of the petition, making this contract property of the debtor as of the commencement of the case. See, 3 Collier on Bankruptcy, para. 521.07, p. 521-28 (15th Ed., 1980); In re Beerman, 112 Fed. 663 (N.D.Ga.1901). There is some dispute about whether this contract is property of" }, { "docid": "16060639", "title": "", "text": "MEMORANDUM OPINION MARTIN V.B. BOSTETTER, Jr., Chief Judge. The instant case requires a ruling on the motion for attorney’s fees, costs and punitive damages pursuant to 11 U.S.C. § 303(i) and sanctions under Bankruptcy Rule 9011 filed by the alleged debtor, Atlas Machine and Iron Works, Inc. (“Atlas”), as a result of the filing of an Involuntary Petition in bankruptcy by Bethlehem Steel Corporation (“Bethlehem”), as sole petitioning creditor. For the reasons set forth herein, the Court awards Atlas its reasonable attorneys’ fees and costs pursuant to 11 U.S.C. § 303(i)(1)(A) & (B). Atlas is granted leave to submit a detailed itemization of its fees and costs incurred in connection with defending the involuntary petition through and including June 28, 1994. We further deny Atlas’s request for compensatory damages under 11 U.S.C. § 303(i)(2)(A) for failure to establish any actual damages other than attorneys’ fees and costs. Additionally, we award $25,000 in punitive damages under 11 U.S.C. § 303(i)(2)(B) based upon Bethlehem’s bad faith filing. Finally, we find that sanctions under Bankruptcy Rule 9011 are warranted against Bethlehem and its counsel in the amount of $1,000 each. I. JURISDICTION AND PROCEDURE. The Court has jurisdiction to determine this matter pursuant to 28 U.S.C. § 1334. It constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A), (C) and (O). We retained jurisdiction following dismissal of the involuntary bankruptcy proceeding for the purpose of awarding costs, attorney’s fees and damages. 11 U.S.C. § 303(i); See In re Glannon, 153 B.R. 571, 572 (D.Kan.1993) (“there is no question that the bankruptcy court has the authority to retain jurisdiction” for purposes of § 303(i)). II. FACTS AND BACKGROUND. The pertinent facts, background and history of this ease are contained in the earlier Opinion of the United States Court of Appeals for the Fourth Circuit. See Atlas Mach. & Iron Works, Inc. v. Bethlehem Steel Corp., 986 F.2d 709, 711 (4th Cir.1993). On April 11, 1991, Bethlehem filed an Involuntary Petition in bankruptcy against Atlas, which requested relief under Chapter 7 of the United States Bankruptcy Code (“the Code”). Atlas timely filed a Motion to" }, { "docid": "2619331", "title": "", "text": "party to a lawsuit must bear his own litigation expense. In re Miller, 14 B.R. 443, 447 (Bankr.E.D.N.Y.1981); In re Scanlon, 4 B.R. 197, 199 (Bankr.E.D.Pa.1980). Section 523(d) allows a debtor who prevails in a proceeding to determine the dischargeability of a consumer debt to recover reasonable attorney’s fees if the position of the objecting creditor was not substantially justified, but that section does not apply to actions, like the present proceeding, objecting to the debtor’s entire discharge under § 727. In re Wolmer, 57 B.R. 128, 132 (Bankr.N.D.Ill.1986). Bankruptcy Rule 9011 and 28 U.S.C. § 1927, however, do apply and the award of attorney’s fees is justified against Mr. Summerlin in this proceeding. Bankruptcy Rule 9011, which tracks Rule 11 of the Federal Rules of Civil Procedure, states in pertinent part: Every petition, pleading, motion and other paper served or filed in a case under the Code on behalf of a party represented by an attorney ... shall be signed by at least one attorney of record in his individual name, whose office address and telephone number shall be stated. A party who is not represented by an attorney shall sign all papers and state his address and telephone number. The signature of an attorney or a party constitutes a certificate by him that he has read the document; that to the best of his 'knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harrass, to cause delay, or to increase the cost of litigation.... If a document is signed in violation of this rule, the court on motion or its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee." }, { "docid": "13597168", "title": "", "text": "of “core” proceedings and includes “(A) matters concerning the administration of the estate;” and “(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship except personal injury tort or wrongful death claims.” This court again agrees with Judge Shadur’s analysis that conduct which, as Judge Schwartz found Mr. Needler’s did, “ ‘impeded the administration of the estate itself.' ” In re: Memorial Estates, Inc., No. 83 B 1016, Adv. No. 83 A 1119 slip op. at 11, (Bankr., N.D.Ill. June 26, 1989), fits within either subsection (A) or (0) and thus the matter of sanctions related to that conduct is “core”. Judge Plunkett made a similar finding. Memorial Estates at 111. 2. Propriety of Sanctions in This Case Even if the bankruptcy court was empowered to enter sanctions pursuant to Rule 9011, Mr. Needier argues, the imposition of sanctions in this instance was nonetheless improper. The record, however, does not support his claim. Bankruptcy Rule 9011 provides: (a) Signature. Every petition, pleading, motion and other paper served or filed in a case under the Code ... shall be signed by at least one attorney of record.... The signature of an attorney ... constitutes a certificate that the attorney ... has read the document; that to the best of the attorney’s ... knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee." }, { "docid": "15720783", "title": "", "text": "MEMORANDUM OF DECISION ON AMENDED COMPLAINT, DEFENDANTS’ COUNTERCLAIMS, AND RELATED MATTERS ALBERT S. DABROWSKI, Bankruptcy Judge. I.INTRODUCTION In this adversary proceeding, the Plaintiff seeks to shield from discharge a debt owed by the Debtor-Defendants by denial of the general discharge of Bankruptcy Code Section 727. As more fully explained hereafter, the Plaintiffs objection to discharge shall be overruled, as this Court finds after trial such objection to be merit-less, frivolous, and filed for improper purposes. In light thereof, the Court, on its own initiative, directs all counsel for the Plaintiff to show cause why they should not be sanctioned pursuant to Fed. R. Bankr.P. 9011(b)(1), Title 28, United States Code, Section 1927, and the inherent power of the Court. In addition, at the commencement of trial, and without prior notice to the Defendants or the Court, the Plaintiff abandoned an attempt to except the subject debt from discharge pursuant to Code Section 523. In connection with this abandoned endeavor the Court schedules further proceedings on the Defendants’ third counterclaim to determine their entitlement to costs and/or attorney’s fees pursuant to Section 523(d). Finally, the Court denies the Defendants’ first and second counterclaims brought pursuant to Code Sections 362 and 547, respectively. II.JURISDICTION The United States District Court for the District of Connecticut has subject matter jurisdiction over the instant adversary proceeding by virtue of 28 U.S.C. § 1334(b); and this Court derives its authority to hear and determine this matter on reference from the District Court pursuant to 28 U.S.C. §§ 157(a), (b)(1). This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(I), (J). III.PROCEDURAL AND FACTUAL BACKGROUND On May 31, 1996, Rowena M. Garcia and Clyde A. Butler (hereafter and heretofore, the “Debtors” or “Defendants”), commenced this bankruptcy case by filing a joint voluntary petition under Chapter 7 of the United States Bankruptcy Code. Schedules and Statements required by Rule 1007(b) of the Federal Rules of Bankruptcy Procedure, discussed in detail hereafter, were filed by the Debtors simultaneously with their voluntary petition. The Debtors filed Amendments to Schedules C, I and J, and their Statement of Financial Affairs," }, { "docid": "18502875", "title": "", "text": "the essential issue is whether JOSI is liable under state law to MESC for Wolverine’s experience rating despite the purchase agreement made between JOSI and Wolverine. Furthermore, while Wolverine is the named party, the dispute is really between JOSI and MESC, and suits between third parties that affect the administration of the title 11 case are typically considered to fall within the “related to” category. 1 Collier on Bankruptcy ¶ 3.01[l][c][iv]. Nevertheless, we find that because this action involves issues which arose because of a bankruptcy proceeding — the dischargeability of debts and the confirmation of a plan — and because Wolverine asserts a right based on bankruptcy law, 11 U.S.C. § 363(f), this action is a core proceeding and the bankruptcy court had jurisdiction to enter judgment on the motion. See In re Wood, 825 F.2d at 97. III. It is important to emphasize that, having decided that jurisdiction exists, we merely decided the threshold question of whether any judgment which might result from the MESC-JOSI dispute could have a tangible effect on the debtor bankruptcy estate. This jurisdictional inquiry did not involve an inquiry into how the bankruptcy court reached that judgment, or whether that judgment was correct, and therefore does not implicate the merits of the claim itself. Furthermore, although bankruptcy courts have jurisdiction over the matter, this fact alone does not determine what law controls the disposition of the tax liability issue. See Robinson, 918 F.2d at 588. We now turn to the merits of Wolverine’s argument, which assails the district court’s conclusion that MESC may assign the debtor’s experience rating, including the debtor’s negative reserve balance and liability for former employees, to a purchaser of assets in a sale free and clear of liens, claims, and interests. As this argument raises a question of law, we review de novo the legal conclusions of the bankruptcy and district courts. In re Edward M. Johnson & Assocs., 845 F.2d 1395, 1398 (6th Cir.1988); Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). The parties are in agreement that under MESA a transfer of the assets of a" } ]

[ { "docid": "20250782", "title": "", "text": "of Congress’s concern was that “children were excluded entirely from the public school system and from being educated with their peers.” 20 U.S.C. § 1400(c)(2)(B) (2006). To alleviate that, disabled children were to have “access to the general education curriculum in the regular classroom, to the maximum extent possible.” § 1400(c)(5)(A). We extract from the statute that the overarching goal of the IDEA is to prevent the isolation and exclusion of disabled children, and provide them with a classroom setting as similar to non-disabled children as possible. The agency’s implementation of the statute provides further insights and supports the idea that placement relates to the classroom setting. The “continuum of alternative placements” includes “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” 34 C.F.R. § 300.115(b)(1) (2006). The main concern with placement is “mainstreaming” disabled children and the regulations provide that disabled children are to be educated “[t]o the maximum extent appropriate ... with children who are nondisabled.” 34 C.F.R. § 300.114(a)(2)(I) (2006). This reasonable agency interpretation of the IDEA is entitled to deference. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Other Circuits have also attempted to divine the meaning of “current educational placement.” The leading case is Concerned Parents & Citizens for Continuing Educ. at Malcolm X (PS 79) v. New York City Bd. of Educ., 629 F.2d 751 (2d Cir.1980). In Concerned Parents, the Second Circuit was faced with the shut down of one public school and the transfer of all handicapped children at that school to another school. Id. at 752. The court considered the stay-put provision of the IDEA’S predecessor. The court considered the way the statute used the term “educational placement,” the legislative history, and the implementing regulations. Id. at 754. The court held that “educational placement” referred only to “the general educational program in which the handicapped child is placed.” Id. at 756. The children’s placements were not changed because they “remain[ed] in the same classification, the same school district, and the same type" } ]

[ { "docid": "18404513", "title": "", "text": "We concluded that there was “little support in the IDEA’S underlying principles for [the] assertion that ‘educational placement’ should be construed to secure [the] right to attend school in a particular classroom at a particular location.” AW, 372 F.3d at 681. We held “that the term ‘educational placement’ as used in the stay-put provision refers to the overall educational environment rather than the precise location in which the disabled student is educated.” Id. at 676. We nevertheless observed that a change in the location at which special education services are provided causes a change in “educational placement” if the location change “results in a dilution of the quality of a student’s education or a departure from the student’s [least restrictive environment]-compliant setting.” Id. at 682. In light of the fact that the school at which special education services are expected to be provided can determine the appropriateness of an education plan, it stands to reason that it can be a critical element for the IEP to address. See Paolo Annino, The 1997 Amendments to the IDEA: Improving the Quality of Special Education for Children with Disabilities, 23 Mental & Physical Disability L. Rep. 125, 126 (Jan./Feb.1999) (noting that requirement that IEP identify location at which special education is expected to be provided reflects the fact that “[a]ll schools and classes are not uniform”). But see White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003) (holding that “[t]he provision that requires the IEP to specify the location is primarily administrative”). The identification of a particular school in the IEP indicates to the parents that the school district has carefully considered and selected a school that will meet the unique needs of the student. See Glendale Unified Sch. Dist. v. Almasi, 122 F.Supp.2d 1093, 1107 (C.D.Cal.2000). Conversely, an offer that fails to identify the school at which special educational services are expected to be provided may not be sufficiently specific for the parents to effectively evaluate. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir.1994) (explaining that despite district’s contentions that its school" }, { "docid": "8597303", "title": "", "text": "that he would have had a place in a classroom had he accepted the FAPE offer. Furthermore, in Union School District v. Smith, we held that a school district must formally offer an appropriate educational placement. 15 F.3d at 1526. In that case, the school district claimed that it did not need to do so because the parents visited the school and rejected it before a formal placement offer was actually made. Id. We held that the offer of placement was a “formal requirement [that] has an important purpose that is not merely technical” and that it “creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered, and what additional educational assistance was offered to supplement a placement, if any.” Id. In contrast, placement was formally offered to K.D., and any dispute that C.L. may have had with the appropriateness of the placement is immaterial to whether the placement offer was formally made. K.D. also claims that the placement offered in Pearl Harbor Kai was not appropriate. C.L.’s advocate, who visited Pearl Harbor Kai with her in 2008, testified that she believed that the classrooms were not appropriate to meet KD.’s needs, and were “babysitting” classes with no good role models. To the contrary, Pearl Harbor Kai’s principal, Elynne Chung, testified that the school offered three fully self contained classrooms and two resource rooms. One of the classrooms had only autistic children, but autistic children were part of the other two classrooms as well. K.D. argues that the principal’s testimony should be discounted because she had not reviewed KD.’s IEP before she showed C.L. and her advocate the classrooms, and she was the only person who testified at the hearing qualified to discuss the programs offered at Pearl Harbor Kai. However, the record shows that the district resource teacher, Aletha Sutton, also testified that she was familiar with the programs and services available at Pearl Harbor Kai. In addition, the district resource teacher testified as an expert in special education and autism, and stated that" }, { "docid": "3784345", "title": "", "text": "when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily.”); Md. Regs.Code tit. 13A § 05.01.10 (regulations concerning least restrictive environments). We stated in DeVries v. Fairfax County Sch. Bd., 882 F.2d 876, 878 (4th Cir.1989), “mainstreaming of handicapped children into regular school programs ... is not only a laudable goal but is also a requirement of the Act.” To assure that students with disabilities receive FAPEs, IDEA requires that school districts provide IEPs for each disabled child. 20 U.S.C. § 1414(d). Before providing special education, the school district must conduct an individual evaluation to determine a student’s eligibility under IDEA. Id. § 1414(a)(1)(a); 34 C.F.R. § 300.531. Upon a determination that a student is learning disabled and thus eligible for special education services, the school district is to develop an IEP through cooperation between parents and school officials. 20 U.S.C. § 1414(a)(5). The IEP is to be formulated by an IEP Team consisting of the child’s parents, one of the student’s regular teachers, a special education teacher, a representative of the school board, an individual who can interpret evaluation results and, whenever appropriate, the disabled child. Id. § 1414(d)(1)(B). An IEP must detail the student’s current educational status, set forth annual goals for the student’s education and state the special educational services and other aids that will be provid ed to the child as well as the extent to which the child will be mainstreamed. Id. § 1414(d)(1)(A). IDEA also establishes a series of procedural safeguards “designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to those decisions.” MM, 303 F.3d at 527 (internal quotation marks and citation omitted); see also 20 U.S.C. § 1415 (procedural safeguards). If the parents are not satisfied with the IEP, they may “present complaints with respect to any matter related to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such a child.” Id. § 1415(b)(6). After such" }, { "docid": "13981949", "title": "", "text": "implemented.” Id. at 206. The court noted that there was “little evidence in the record” to support a claim that the woman’s educational program necessarily would change “merely because of a change in location in which it is provided to her.” Id. at 206 n. 22 (emphasis added). Rather, “[t]he mere fact that one location may be able to provide better services, or services beyond those required by the IEP, does not mean that delivery of educational services at another location would be inappropriate.” Id. In White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003), the court held that IDEA’S requirement that parents be involved in determining “educational placement” does not necessarily mean they must be involved in site selection. Id. at 379. The court in White rejected the parent’s argument that “education placement” refers to the “location” or a “particular school,” but instead found that the term relates to a “setting,” such as regular classes, special education classes, special schools, home instruction, or hospital or institution-based instruction. Id. at 380. In an unpublished case, Veazey v. Ascension Parish Sch. Bd., 121 Fed.Appx. 552 (5th Cir.2005), the court held that a school district’s transfer of a deaf child from one school three miles from his home to another seven miles away did not constitute a “change in placement.” Veazey, 121 Fed.Appx. at 553. The transfer required the child “to ride a special school bus used to transport disabled children instead of a regular school bus, and required him to share a transliterator with another hearing impaired student instead of having a private transliterator.” Id. However, the court found that the change in school site was not a change in placement; that the IEP did not require the provision of a personal transliterator; and that the change in school buses was not a “fundamental change” in the IEP. Id. In contrast, a district court in Louisiana found that a school transfer did constitute a change in placement triggering the notice and due process hearing rights of a parent. Jonathan G. ex rel. Charlie Joe G. v. Caddo Parish" }, { "docid": "18404517", "title": "", "text": "— would be a satisfactory fit. This is not how the IDEA was designed to work. See Glendale, 122 F.Supp.2d at 1107 (noting that a failure to identify a particular school places “an undue burden on a parent to eliminate potentially inappropriate placements, and makes it more difficult for a parent to decide whether to accept or challenge the school district’s offer”). Rather, “[a]fter discussing the advantages and disadvantages of various programs that might serve the needs of a particular child,” it is incumbent on the school district to utilize its expertise to “clearly identify an appropriate placement from the range of possibilities.” Id. at 1108. In finding that ACPS offered A.K. a FAPE, the district court erroneously relied on the premise that “ACPS made a placement offer both at the Phillips School and the Kellar School.” A.K., 409 F.Supp.2d at 694. In evaluating whether a school district offered a FAPE, a court generally must limit its consideration to the terms of the IEP itself. See Z.P., 399 F.3d at 306 n. 5; Knable, 238 F.3d at 768. But cf. MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002) (evaluating proposed IEP when parents’ lack of cooperation prevented IEP team from finalizing the IEP). Expanding the scope of a district’s offer to include a comment made during the IEP development process would undermine the important policies served by the requirement of a formal written offer, namely, “creating a clear record of the educational placement and other services offered to the parents” and “assisting] parents in presenting complaints with respect to any matter relating to the educational placement of the child.” Knable, 238 F.3d at 768 (internal quotation marks & alteration omitted). Especially in this case, in which the parents had tried in vain to find a local private day school that could meet A.K.’s specialized needs, the offer of an unspecified “private day school” was essentially no offer at all. We emphasize that we do not hold today that a school district could never offer a FAPE without identifying a particular location at which the special" }, { "docid": "18404512", "title": "", "text": "of the services and modifications ..., and the anticipated frequency, location, and duration of those services and modifications.” 20 U.S.C.A. § 1414(d)(l)(A)(i)(VTI) (emphasis added). The Senate Report concerning the 1997 amendments to the IDEA, which added the requirement that the location be identified, noted that the new requirement reflects the fact that the location “influences decisions about the nature and amount of these services and when they should be provided.” S.Rep. No. 105-17, at 21 (1997), U.S.Code Cong. & AdmimNews 1997, 78, 99. Indeed, we have previously discussed the potential importance of the particular location at which special educational services are provided. See AW ex rel. Wilson v. Fairfax County Sch. Bd., 372 F.3d 674 (4th Cir.2004). In AW, the student alleged that the school district’s transfer of him to a different classroom within the same school because of a pattern of misbehavior violated the “stay-put” provision of the IDEA, which requires that a student’s “educational placement” not change while disciplinary proceedings are pending. See 20 U.S.C.A. § 1415Q); AW, 372 F.3d at 676, 678. We concluded that there was “little support in the IDEA’S underlying principles for [the] assertion that ‘educational placement’ should be construed to secure [the] right to attend school in a particular classroom at a particular location.” AW, 372 F.3d at 681. We held “that the term ‘educational placement’ as used in the stay-put provision refers to the overall educational environment rather than the precise location in which the disabled student is educated.” Id. at 676. We nevertheless observed that a change in the location at which special education services are provided causes a change in “educational placement” if the location change “results in a dilution of the quality of a student’s education or a departure from the student’s [least restrictive environment]-compliant setting.” Id. at 682. In light of the fact that the school at which special education services are expected to be provided can determine the appropriateness of an education plan, it stands to reason that it can be a critical element for the IEP to address. See Paolo Annino, The 1997 Amendments to the" }, { "docid": "18404531", "title": "", "text": "was not denied a FAPE. As the district court pointed out, ACPS recommended both the Phillips and Kellar schools as options for A.K. during the June 9 IEP meeting. A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 409 F.Supp.2d 689, 693 (E.D.Va.2005). Whether or not there was extensive discussion of the schools during the meeting, Susan Sullivan named the schools as possible locations at which A.K. might be educated. In A.K.’s case, this oral notice was equivalent to the written notice the IDEA requires: after Sullivan’s suggestions were made, A.K.’s parents knew with a reasonable degree of certainty where ACPS proposed to educate their child the following school year. The Phillips and Kellar schools were the only ones named as possibilities by ACPS until the school district sent A.K.’s information to several other private day schools on July 6, and during the IEP meeting, A.K.’s parents understood them as such. The majority discounts the mention of these two schools because, it says, the IEP team had never considered whether those particular schools would be able to satisfy A.K.’s needs. See ante 681-82. This objection has no bearing on the question whether ACPS’s failure to specify a location on the IEP harmed A.K. The majority’s principal concern is that A.K.’s parents had no idea where them child was likely to receive special education services, placing upon them the “undue burden” of investigating any number of potential placements. See ante at 681. But A.K.’s parents did know where he would likely receive special education services: the Phillips School or the Kellar School. Even if the decision-making process was relevant to the question of notice, there was no defect in the manner in which ACPS selected the Phillips and Kellar schools as possibilities. Sullivan, who suggested the schools at the June 9 meeting, was ACPS’s private placement specialist and had nearly thirty years of experience in the special education field. It was her job to place needy students in private day or residential schools. She visited schools (including Phillips and Kellar) and worked with teachers and parents to ensure successful placements. She" }, { "docid": "18404533", "title": "", "text": "knew A.K.’s case well and had placed other students in both the Phillips and Kellar schools before. Her recommendations for A.K. were of precisely the sort it was her job to make. The IDEA does not govern the process by which she must arrive at her recommendations, and I find no problem with either her reliance upon her expertise or her ultimate suggestions. Cf. § 1414(d)(3)(B) (listing factors IEP team must consider while developing IEP). The IDEA does not require that an IEP identify the definitive location for the provision of a child’s special education services; the IEP need only supply the anticipated location. § 1414(d)(l)(A)(i)(VII). In A.K.’s case, the IEP did not, but ACPS suggested two potential locations during the June 9 meeting. If A.K.’s parents wished to challenge the suitability of either school, they could have done so (and did), but the basis for their complaint ought not to have been that they were unaware of the anticipated location of services. Because A.K.’s parents were given notice that the Phillips and Kellar schools were locations under consideration; ACPS’s failure to write this information on his IEP did not deny A.K. of an educational opportunity- Perhaps more important than the notice provided in the June 9 IEP meeting is the apparent determination of A.K.’s parents to keep him at Riverview no matter the outcome of the IEP proceedings. See MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002) (finding procedural error harmless in part because there was no evidence parents would have accepted FAPE offered by school district). Before the 2004-2005 IEP development process even began, A.K.’s parents signed a contract and paid a deposit for A.K. to return to Riverview for the summer of 2004 and the 2004-2005 school year. A.K.’s mother testified that she was unwilling to bring A.K. back from Riverview, where he was attending a summer program, without a “specific placement” in Alexandria being identified first. Apparently this unwillingness extended even to trips home that might help identify that “specific placement”: both Phillips and Kellar requested interviews with A.K. during the" }, { "docid": "18404528", "title": "", "text": "day and arranging for the child’s transportation. See White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003) (“The provision that requires the IEP to specify the location is primarily administrative .... ”). This understanding of location is consistent with our precedent. When defining educational placement as it is used in the IDEA’S “stay put” provision, we repeatedly distinguished educational placement from location. See A.W. v. Fairfax County Sch. Bd., 372 F.3d 674, 681-83 (4th Cir.2004). Concluding that educational placement referred to an “instructional setting,” this Court emphasized that the placement did not refer to the “precise location of that setting” or the “precise physical location where the disabled student is educated.” Id. at 683, 681. As it is used in the IDEA (and in common parlance), then, location refers to something geographic in nature: a place or locale. This understanding is consistent with the notion that .§ 1414(d)(l)(A)(i)(VII) deals with practical, logistical considerations. A.K.’s 2004-2005 IEP contains a chart with a column labeled “LOCATION OF SERVICES.” That column bears the solitary entry “SpeEd [illegible],” in reference to the type of education A.K. would receive, not the location at which he would receive it. Thus, A.K.’s IEP was flawed. ACPS’s error, however, was only procedural. There is no bright line distinguishing all the “procedural” requirements of the IDEA from its “substantive” requirements. If such a line could be drawn, it might be done by looking to the consequences of the violation of the IDEA requirement in question. The violation of a substantive requirement results, of necessity, in the denial of a FAPE, whereas the violation of a procedural requirement does not, see DiBuo, 309 F.3d at 190. More than once the majority acknowledges that the failure to identify the location of the provision of special education services on a student’s IEP need not always result in the denial of a FAPE. See ante 681, 682. This concession supports the conclusion that the requirement that a school district give an anticipated location on the IEP is only procedural. But then the majority states without explanation that it “views [A.K.’s]" }, { "docid": "18404524", "title": "", "text": "schools and we nonetheless held that the district had offered a FAPE. See MM, 303 F.3d at 535. The opinion there, however, provides no indication that the parents objected to the particular schools at issue or argued that the school district should have identified a single school. See id. . That is not to say that a change in the school where services were to be provided would constitute a change in placement. Rather, a change in school constitutes a change in placement only if the change \"result[ed] in a dilution of the quality of [the] student's education or a departure from the student’s LRE-compliant setting.” AW, 372 F.3d at 682. We emphasize that the IEP-development process is a cooperative one. Thus, if the school district identifies several schools during that process that it believes would serve the needs of the child, parents will have the opportunity to voice their preference before the IEP is finalized. . For this reason, the dissent's contention that despite the fact that no location was included in the IEP, the parents knew \"with a reasonable degree of certainty” where ACPS proposed to educate A.K. is not dispositive. Post, at 684-85. The contention is also factually suspect considering that although Sullivan mentioned that Kellar and Phillips would be possibilities for A.K., she never indicated that the district would not consider other schools as well (as it did when it sent applications to three other schools). . The dissent's characterization notwithstanding, we do not \"acknowledge[ ] that the failure to identify the location of the provision of special education services on a student's IEP need not always result in the denial of a FAPE.” Post, at 684. We merely note that we need not decide that issue today. GREGORY, Circuit Judge, dissenting: Today the majority mistakenly concludes that an inconsequential procedural error denied a disabled student of the opportunity for a FAPE. Of equal concern, the majority blurs the already indistinct line between procedural and substantive errors in the preparation of IEPs, documents that are of singular importance to the proper operation of the IDEA. The" }, { "docid": "18404532", "title": "", "text": "able to satisfy A.K.’s needs. See ante 681-82. This objection has no bearing on the question whether ACPS’s failure to specify a location on the IEP harmed A.K. The majority’s principal concern is that A.K.’s parents had no idea where them child was likely to receive special education services, placing upon them the “undue burden” of investigating any number of potential placements. See ante at 681. But A.K.’s parents did know where he would likely receive special education services: the Phillips School or the Kellar School. Even if the decision-making process was relevant to the question of notice, there was no defect in the manner in which ACPS selected the Phillips and Kellar schools as possibilities. Sullivan, who suggested the schools at the June 9 meeting, was ACPS’s private placement specialist and had nearly thirty years of experience in the special education field. It was her job to place needy students in private day or residential schools. She visited schools (including Phillips and Kellar) and worked with teachers and parents to ensure successful placements. She knew A.K.’s case well and had placed other students in both the Phillips and Kellar schools before. Her recommendations for A.K. were of precisely the sort it was her job to make. The IDEA does not govern the process by which she must arrive at her recommendations, and I find no problem with either her reliance upon her expertise or her ultimate suggestions. Cf. § 1414(d)(3)(B) (listing factors IEP team must consider while developing IEP). The IDEA does not require that an IEP identify the definitive location for the provision of a child’s special education services; the IEP need only supply the anticipated location. § 1414(d)(l)(A)(i)(VII). In A.K.’s case, the IEP did not, but ACPS suggested two potential locations during the June 9 meeting. If A.K.’s parents wished to challenge the suitability of either school, they could have done so (and did), but the basis for their complaint ought not to have been that they were unaware of the anticipated location of services. Because A.K.’s parents were given notice that the Phillips and Kellar schools" }, { "docid": "8597301", "title": "", "text": "“free and appropriate public education at Pearl Harbor Kai elementary to be supported by an after-school program (2hrs/daily) ... in a smaller student to teacher ratio [setting] within a fully self contained environment designed ... espe dally for the students.” The 2007 IEP further stated that K.D. would “participate with general education peers for the following activities, when deemed appropriate: lunch in the cafeteria, recess and school wide assemblies.” The 2008 IEP offered to K.D. specified a “placement in a special education setting at Pearl Harbor Kai in a small group setting with not more than ten (10) students of varying levels of competencies, but with language abilities that will assist in facilitating [KDJ’s communication and social skill development.” The IEP also indicated that K.D. may participate with non-disabled peers in after-school group activities and outings if deemed appropriate. We conclude that both the 2007 and 2008 IEPs offered K.D. actual placement. Both identified the specific school K.D. was to attend — Pearl Harbor Kai Elementary — along with a description of the classroom environment. The cases that K.D. cites for the proposition that a placement is only valid if the exact room where K.D. would be placed is specified are inapposite. In A.K. ex rel. J.K. v. Alexandria City School Board, 484 F.3d 672, 681 (4th Cir.2007), the court held “as a matter of law that because [the agency] failed to identify a particular school, the IEP was not reasonably calculated to enable [the child] to receive educational benefits.” In that case, the IEP only recommended a private day school, but did not specify the specific private day schools being considered. Id. The court reasoned that without a specific school being named, “the parents were left to fend for themselves to determine whether any private day school in their area ... would be a satisfactory fit.” Id. In contrast, K.D.’s IEP specified Pearl Harbor Kai as the school where he would be placed and offered that he would be placed into one of the three fully self contained classrooms that were available at the school. There was no question" }, { "docid": "6971084", "title": "", "text": "had the statutory authority to demand. In any case, because the class was certified in error, the order approving the DPI settlement must also be vacated. I. Background A. Legal Framework The IDEA requires participating States to provide to all disabled students a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A). Complying with this requirement is a complex and inherently child-specific undertaking. First, the IDEA requires that “[a]ll children with disabilities residing in the State ... and who are in need of special education and related services” be “identified, located, and evaluated,” a process known as “child find.” Id. § 1412(a)(3)(A). Once a disabled child in need of special education is identified, the local school district must evaluate the child’s specific needs and develop an “individualized educational program,” or “IEP,” outlining the particular special-education services that are necessary to allow the child to learn in the “least restrictive environment.” Id. §§ 1412(a)(4)-(5), 1414. The content of an IEP and the meaning of “least restrictive environment” are nuanced topics that we need not explore here. With limited exceptions, an “IEP Team” must be convened and meet within 90 days of the child’s initial referral, see Wis. Stat. § 115.78(3)(a) (1998); the IEP Team must include various educational professionals and the child’s parent or guardian, see 20 U.S.C. § 1414(d)(1)(B). Once an IEP is in place, the school must provide the services listed in it, and the IDEA sets out many rules governing the process of amending an IEP. These topics, too, are beyond the scope of inquiry here. To ensure that each disabled child receives a free appropriate public education, the IDEA also requires States to provide various procedural safeguards to students and parents. See id. § 1415. A parent may file a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child,” id. § 1415(b)(6)(A), and may request an impartial due-process hearing to resolve the complaint, id. § 1415(f). After receiving a final decision from the hearing officer, the parent may appeal to the state educational agency. Id. § 1415(g). Finally, a still-aggrieved" }, { "docid": "18404518", "title": "", "text": "F.3d at 768. But cf. MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002) (evaluating proposed IEP when parents’ lack of cooperation prevented IEP team from finalizing the IEP). Expanding the scope of a district’s offer to include a comment made during the IEP development process would undermine the important policies served by the requirement of a formal written offer, namely, “creating a clear record of the educational placement and other services offered to the parents” and “assisting] parents in presenting complaints with respect to any matter relating to the educational placement of the child.” Knable, 238 F.3d at 768 (internal quotation marks & alteration omitted). Especially in this case, in which the parents had tried in vain to find a local private day school that could meet A.K.’s specialized needs, the offer of an unspecified “private day school” was essentially no offer at all. We emphasize that we do not hold today that a school district could never offer a FAPE without identifying a particular location at which the special education services are expected to be provided. There is no reason for us to frame the issue so broadly. But, certainly in a case in which the parents express doubt concerning the existence of a particular school that can satisfactorily provide the level of services that the IEP describes, the IEP must identify such a school to offer a FAPE. Our determination that the school district failed to offer a FAPE does not resolve the parents’ reimbursement claim, however. The claim remains unresolved because the district court has not made findings regarding the appropriateness of A.K.’s placement at Riverview. See Z.P., 399 F.3d at 311. Thus, we remand to the district court for further proceedings consistent with this decision. See id. III. In sum, we reverse the grant of summary judgment against the parents and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED .The district court found that ''[p]rivate day school placement is a term of art describing an educational program which includes several characteristics such as a small overall student body" }, { "docid": "18404514", "title": "", "text": "IDEA: Improving the Quality of Special Education for Children with Disabilities, 23 Mental & Physical Disability L. Rep. 125, 126 (Jan./Feb.1999) (noting that requirement that IEP identify location at which special education is expected to be provided reflects the fact that “[a]ll schools and classes are not uniform”). But see White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003) (holding that “[t]he provision that requires the IEP to specify the location is primarily administrative”). The identification of a particular school in the IEP indicates to the parents that the school district has carefully considered and selected a school that will meet the unique needs of the student. See Glendale Unified Sch. Dist. v. Almasi, 122 F.Supp.2d 1093, 1107 (C.D.Cal.2000). Conversely, an offer that fails to identify the school at which special educational services are expected to be provided may not be sufficiently specific for the parents to effectively evaluate. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir.1994) (explaining that despite district’s contentions that its school for autistic children would have been an appropriate placement for the child, district did not offer that school when it did not make a formal, written offer to provide the child services at that school); Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir.2001) (similar). Here, we hold as a matter of law that because it failed to identify a particular school, the IEP was not reasonably calculated to enable A.K. to receive educational benefits. See Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Indeed, this case presents an excellent example of the circumstances under which inclusion of a particular school in an IEP can be determinative of whether a FAPE has been offered. The parents agree that an appropriate private day school could provide a FAPE; they favor keeping A.K. at Riverview only because they have not found a private day school in their area that could meet A.K’s specialized needs. Yet, the IEP development process concluded without any significant discussion of whether such a school existed, or" }, { "docid": "18404527", "title": "", "text": "not lose an educational opportunity as a result of the procedural error, he was not denied a FAPE. See DiBuo, 309 F.3d at 190. The majority is correct that A.K.’s IEP did not meet the IDEA’S requirements. Specifically, the IEP did not specify the anticipated location at which the school district would provide special education services to A.K. The IDEA requires that an IEP include “the projected date for the beginning of the services and modifications described in subclause (IV), and the anticipated frequency, location, and duration of those services and modifications.... ” 20 U.S.C. § 1414(d)(l)(A)(i)(VII) (Supp.2004). The statute does not define location as it is used in § 1414(d)(l)(A)(i)(VII), but the term must refer to something other than an educational placement, something more akin to a particular geographic locale. Section 1414(d)(l)(A)(i)(VII) concerns itself with some of the logistical considerations parents might have when making a decision regarding their • child’s education. The projected starting date, frequency, location, and duration of the child’s educational sessions are relevant to practical concerns like scheduling the child’s day and arranging for the child’s transportation. See White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003) (“The provision that requires the IEP to specify the location is primarily administrative .... ”). This understanding of location is consistent with our precedent. When defining educational placement as it is used in the IDEA’S “stay put” provision, we repeatedly distinguished educational placement from location. See A.W. v. Fairfax County Sch. Bd., 372 F.3d 674, 681-83 (4th Cir.2004). Concluding that educational placement referred to an “instructional setting,” this Court emphasized that the placement did not refer to the “precise location of that setting” or the “precise physical location where the disabled student is educated.” Id. at 683, 681. As it is used in the IDEA (and in common parlance), then, location refers to something geographic in nature: a place or locale. This understanding is consistent with the notion that .§ 1414(d)(l)(A)(i)(VII) deals with practical, logistical considerations. A.K.’s 2004-2005 IEP contains a chart with a column labeled “LOCATION OF SERVICES.” That column bears the solitary entry" }, { "docid": "19919668", "title": "", "text": "§ 1412(a)(4); See O’Toole ex rel. O’Toole v. Olathe Dist. Schs. Unified Sell. Dist. No. 233, 144 F.3d 692, 698 (10th Cir.1998). Prepared at meetings between a representative of the local school district, the child’s teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (internal citations omitted); see 20 U.S.C. § 1414(d). Review of IEPs must occur at least annually, and are to be revised as appropriate. Id. By passing the IDEA, Congress also sought to “mainstream” disabled children, i.e., states must have a goal of providing “full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal.” § 1412(a)(2). Each child has a substantive right to receive his or her education in the “least restrictive environment.” See § 1412(a)(5)(A). That is, students must be educated “[t]o the maximum extent appropriate ... with children who are not disabled” in a “regular educational environment.” Id. States are prohibited from segregating or otherwise removing disabled children from the regular classroom setting except “when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Id.; see Honig, 484 U.S. at 311,108 S.Ct. 592. In conjunction with this right, “[e]ach public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” 34 C.F.R. § 300.115(a). Placement decisions must be based on the child’s IEP, and made by “a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” § 300.116(a)(1). Unless a child’s IEP requires some other arrangement, the child should be “educat ed in the school that he or" }, { "docid": "8597300", "title": "", "text": "evaluation data, and the placement options; and (2) Is made in conformity with the LRE provisions of this subpart, including §§ 300.114 through 300.118; (b) The child’s placement— (1) Is determined at least annually; (2) Is based on the child’s IEP; and (3) Is as close as possible to the child’s home; 34 C.F.R. § 300.116. The least restrictive environment provision (LRE) requires that the state “have in effect policies and procedures to ensure that public agencies in the state meet the LRE requirements of this section and §§ 300.115 through 300.120.” Id. § 300.114. Hawaii Administrative Rules defines the LRE requirement as “to the maximum extent appropriate, educating students with disabilities ... with students who are non-disabled and removing students with disabilities from the regular educational environment only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Haw. Admin. R. § 8-60-2; see also 34 C.F.R. § 300.114(a)(2). The 2007 IEP offered to K.D. specified a “free and appropriate public education at Pearl Harbor Kai elementary to be supported by an after-school program (2hrs/daily) ... in a smaller student to teacher ratio [setting] within a fully self contained environment designed ... espe dally for the students.” The 2007 IEP further stated that K.D. would “participate with general education peers for the following activities, when deemed appropriate: lunch in the cafeteria, recess and school wide assemblies.” The 2008 IEP offered to K.D. specified a “placement in a special education setting at Pearl Harbor Kai in a small group setting with not more than ten (10) students of varying levels of competencies, but with language abilities that will assist in facilitating [KDJ’s communication and social skill development.” The IEP also indicated that K.D. may participate with non-disabled peers in after-school group activities and outings if deemed appropriate. We conclude that both the 2007 and 2008 IEPs offered K.D. actual placement. Both identified the specific school K.D. was to attend — Pearl Harbor Kai Elementary — along with a description of the classroom environment." }, { "docid": "18404540", "title": "", "text": "both the 2002-2003 and 2003-2004 school years without objection on this point. A.K.'s mother signed the 2003-2004 IEP as part of a settlement agreement between the parents and ACPS. Under the terms- of the agreement, the parents consented to the \"private day school placement” designated in the IEP in exchange for ACPS's partial funding of A.K.'s education at Riverview that year. Then, as now, the parents' true complaint was that A.K. should be at Riverview and not in private day placement at all. Unfortunately, ACPS refused to subsidize A.K.'s Riverview education for the 2004-2005 school year and presented ample evidence during the 2004 due process hearing to justify its choice of private day placement for A.K. To obtain funding for their preferred school a second time, the parents are left with a claim that a procedural oversight denied A.K. some educational opportunity. . Although 20 U.S.C. § 1415 addresses itself specifically to procedural safeguards, we have found several of the requirements listed in § 1414 to be procedural as well. See, e.g., DiBuo, 309 F.3d at 187, 190-92; MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002). . As the majority acknowledges, see ante 681 n. 9, this Court has upheld the validity of an IEP in which a school district promised to provide special education services at one of two different locations, see MM, 303 F.3d at 529, 535. Although the number of schools suggested on the IEP was not at issue in that case, MM lends support to the proposition that a school district may suggest more than one school and still satisfy its obligation to write the anticipated location of the provision of services on an IEP. A multiplicity of suggested locations may well place an \"undue burden\" on the parents (as might suggesting no school at all), but two schools hardly constitute a multiplicity. I am troubled that the majority is willing to punish a school district for acknowledging that more than one school may appropriately serve a child’s needs. Given that neither of the two suggested schools had met with A.K." }, { "docid": "19919669", "title": "", "text": "§ 1412(a)(5)(A). That is, students must be educated “[t]o the maximum extent appropriate ... with children who are not disabled” in a “regular educational environment.” Id. States are prohibited from segregating or otherwise removing disabled children from the regular classroom setting except “when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Id.; see Honig, 484 U.S. at 311,108 S.Ct. 592. In conjunction with this right, “[e]ach public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” 34 C.F.R. § 300.115(a). Placement decisions must be based on the child’s IEP, and made by “a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” § 300.116(a)(1). Unless a child’s IEP requires some other arrangement, the child should be “educat ed in the school that he or she would attend if nondisabled.” Id. The IDEA also sought to maximize parental involvement in educational decisions affecting their disabled child by granting parents a number of procedural rights. For example, parents are entitled to: (1) examine all records relating to their child, 20 U.S.C. § 1415(b)(1); (2) participate in the IEP preparation process, id.; (3) obtain an independent evaluation of their child, id.; (4) receive notice before an amendment to an IEP is either proposed or refused, § 1415(b)(3); (5) take membership in any group that makes decisions about the educational placement of their child, § 1414(f); and (6) receive formal notice of their rights under the IDEA, § 1415(d)(1). Responsibility for implementing the IDEA and policing IDEA compliance rests with the states, subject to the IDEA’S limited but specific structural framework. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 531, 163 L.Ed.2d 387 (2005) (citing Rowley, 458 U.S. at 183, 102 S.Ct. 3034). Each “State Educational Agency” (“SEA”) must enact procedures and policies to implement the IDEA, and ensure" } ]

[ { "docid": "22025672", "title": "", "text": "serious fall [he] suffered (also while on active duty).” R. at 349. Although the ROA contained Spokane VAMC medical records from Dr. Limber showing that the veteran had been hospitalized for approximately four days in January 1988 for treatment of “mitral stenosis, echo evidence of mitral valve”, and “articular flutter, slow ventricular response” (R. at 353), there is no indication in the ROA that VA informed the veteran that he should submit a direct statement from the physician himself to the effect that there may be a causal link between the medication the veteran received in service and his present heart condition. See 38 U.S.C. § 5103(a); Robinette v. Brown, 8 Vet.App. 69, 79-80 (1995) (holding that nature and extent of section 5103(a) duty depends on evidence that had been submitted in support of particular claim and evidence of which VA had notice). Because VA was on notice that such evidence might provide a causal connection between the appellant’s heart condition and the medication he received in service, we conclude that the Secretary had a section 5103(a) duty to notify the appellant regarding the procurement and submission of any such additional evidence. See Graves v. Brown, 8 Vet.App. 522, 524-25 (1996) (applying section 5103(a) and Robi-nette to claim to reopen). In readjudicating the case on remand, the Board must provide a full statement of its reasons or bases under 38 U.S.C. § 7104(d)(1), see Gilbert, 1 Vet.App. at 56-57, and, in light of the “significant” evidence in support of the claim, must explain its consideration of the benefit-of-the doubt rule under 38 U.S.C. § 5107(b), Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993). Finally, the Board should clarify whether the veteran still wishes a hearing before the Board in view of his request for a hearing in his December 1991 VA Form 1-9. See R. at 529. III. Conclusion Upon consideration of the record and the submissions of the parties, the Court vacates the September 12, 1994, BVA decision and remands the matter of service connection for rheumatic heart disease for expeditious further development, proceedings, and readjudi-cation, on the" } ]

[ { "docid": "21542002", "title": "", "text": "that the appellant’s DIC claim was not well grounded. In Robinette, 8 Vet.App. at 80, the Court held that where a claimant has not submitted a well-grounded claim and “the Secretary was on notice that relevant evidence may have existed, or could have been obtained, that, if true, would have made the claim ‘plausible’ and that such evidence had not been submitted with the application” the Secretary had an obligation under 38 U.S.C. § 5103(a) to notify the claimant of the evidence necessary to complete his application. Assuming, but not deciding, that the Robinette section 5103(a) duty would apply in a case where the BVA had correctly found the claim to be not well grounded, the Court holds on the facts of this case that the Secretary was not obligated to advise the claimant to obtain a medical statement from Dr. “Karen”, because even if the appellant had presented a statement from a physician to the effect that the veteran had had a heart attack “10, 20, 30 years maybe more” before 1981, such a statement would not provide a nexus with the veteran’s service from December 1942 to November 1943. Thirty years before 1981 would still be many years after the veteran’s separation from service, and an equivocal statement such as “maybe more” would not provide a nexus to service and would thus not justify a belief that the claim is plausible. See Lathan v. Brown, 7 Vet.App. 359, 365 (1995) (quoting section 5107(a)) (to be well grounded a claim must be accompanied by supportive evidence and such evidence “must ‘justify a belief by a fair and impartial individual’ that the claim is plausible”). The Court has held that a VA hearing officer has a regulatory obligation under 38 C.F.R. § 3.103(c)(2) to inform a claimant of evidence he or she “may have overlooked and which would be of advantage to the claim ant’s position.” See Douglas v. Derwinski, 2 Vet.App. 435, 441-42 (1992) (en banc), aff'g on these grounds Douglas v. Derwinski, 2 Vet.App. 103, 110 (1992). However, the hearing officer at the May 1991 RO hearing had" }, { "docid": "16956522", "title": "", "text": "of the Court’s section 5103(a) interpretation in Robinette, even were the Court inclined to revisit its Robinette interpretation on the facts of the instant case, which it is not, the Federal Circuit’s McKnight opinion would render it inadvisable for us to do so. Moreover, the appellant’s arguments that section 5103(a) somehow could impose a duty on VA to complete the examination, Appellant’s Br. at 8-12, confuse the section 5107(a) duty for VA itself to assist a claimant, who has, as the veteran here has not, submitted a well-grounded claim, with VA’s section 5103(a) duty to notify a claimant who submits an incomplete application of information that the claimant must submit under certain circumstances set forth in Robinette, supra. See Epps, 9 Vet.App. at 344-45. Consequently, the Court holds that VA had no duty under the Court’s caselaw, ratified by the Federal Circuit in McKnight, supra, interpreting section 5103(a) to advise the appellant to obtain an x-ray examination, and thus its assumed failure to do so was not error. C. Miscellaneous The appellant raises some additional arguments. He contends that VA’s failure to provide the recommended x-ray examination raises constitutional concerns. Appellant’s Br. at 10-11. He cites the following statement from the Court’s opinion in Grivois: “[I]f the Secretary, as a matter of policy, volunteers assistance to establish well groundedness, grave questions, of due process can arise if there is apparent disparate treatment between claimants in this regard. See Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012 (1959) (procedures gratuitously provided by Secretary must be provided to all others similarly situated).” Grivois, supra (dictum). The appellant’s reliance on this dictum is misplaced because there is no question of disparate treatment on the facts of this case; the Gri-vois caution quoted above might lend the appellant some support had he been denied an examination because he had not submitted a well-grounded claim and were it to be demonstrated that similarly situated veterans were afforded VA examinations, but that is certainly not the situation here, Hence, the appellant offers only mere assertions of constitutional impropriety for which" }, { "docid": "19276271", "title": "", "text": "claims” that is “missing”, id. at 122. In this manner, section 5103(a) assumes a fundamental role in furthering an interest that goes to the very essence of the nonadversarial, pro-claimant nature of the VA adjudication system, see, e.g., Elkins, supra — that is, VA’s duty to assist claimants in the development of their claims- — -by affording a claimant a meaningful opportunity to participate effectively in the processing of his or her claim. See 38 U.S.C. § 5103A; Holliday v. Principi, 14 Vet.App. 280, 285 (2001) (stating that “the Court must avoid cutting off an appellant’s rights under the VCAA by prematurely injecting itself into the VA adjudication process” because to do so “where no section 5103(a) notice had been provided by VA would violate principles of fair process”, given VA’s “ ‘uniquely pro-claimant’ ” benefits system (quoting, in part, Nolen v. Gober, 222 F.3d 1356, 1361 (Fed.Cir.2000), and Winters v. West, supra)); Daniels, supra. Taking into account the foregoing conclusions regarding prejudicial error and the applicable burdens, we conclude that in the section 5103(a) notice context an appellant generally must identify, with considerable specificity, how the notice was defective and what evidence the appellant would have provided or requested the Secretary to obtain (e.g., a nexus medical opinion) had the Secretary fulfilled his notice obligations; further, an appellant must also assert, again with considerable specificity, how the lack of that notice and evidence affected the essential fairness of the adjudication. See Marciniak and Parker, both supra; Duran v. Brown, 7 Vet.App. 216, 222 (1994) (holding that Board’s failure to reopen disallowed claim was prejudicial error where Court found that new evidence clearly was material and that, even though Board “in fact” reopened and adjudicated claim on merits, if Board had reopened claim it would have been required to fulfill Secretary’s “ ‘statutory duty to assist’ ” under which Secretary “could well have identified and secured additional supporting medical records ..., conducted a mental examination of the appellant ..., and obtained military records”); Junstrom and Yabut, both supra. When the appellant has met the burden of going forward with such" }, { "docid": "22025464", "title": "", "text": "the layman’s account of what he purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette, 8 Vet.App. at 77; see also Graves v. Brown, 8 Vet.App. 522, 524 (1996). Accordingly, upon de novo review, the Court holds that the BVA did not err in concluding that the veteran had not submitted a well-grounded claim for service connection for Crohn’s disease. B. Secretary’s 38 U.S.C. § 5103(a) Duty Although the veteran did not clearly state to the RO or BVA that his father had told him that his Crohn’s disease was related to service, he did submit statements from his mother and siblings, who asserted that Dr. Meyer had treated the veteran from 1977 until the doctor’s death in 1991. The appellant asserts that the Secretary thus had a duty under 38 U.S.C. § 5103(a) to inform him of what evidence he would need to submit to complete his application. Brief (Br.) at 7. Specifically, the appellant argues that the family letters put VA on notice that relevant, competent medical evidence might exist in the form of treatment records kept by Dr. Meyer or others, and that VA should have advised the claimant to obtain and submit any such records or other corroborative evidence. Br. at 8. In Robinette, the Court held that where a claimant had not submitted a well-grounded claim and “the Secretary was on notice that relevant evidence may have existed, or could have been obtained, that, if true, would have made the claim ‘plausible’ and that such evidence had not been submitted with the application”, then that application was “incomplete” and the Secretary had an obligation under 38 U.S.C. § 5103(a) to notify the claimant of the evidence necessary to complete it. Robinette, 8 Vet.App. at 80. The indication of the existence of missing relevant evidence in Robinette was the claimant’s statement that his doctor “feels that” his diabetes had begun during service. Id. at 73. In Graves, the Court ruled that section 5103(a) required a remand where an appellant had stated that “Dr." }, { "docid": "11961512", "title": "", "text": "sufficient evidence for a well-grounded claim. While the claim was not well grounded, the record did contain a statement by the veteran reporting that the veteran’s doctor had said the veteran’s disability was “most probably” service connected. We concluded: Under the circumstances of this case, the Secretary was on notice that relevant evidence may have existed, or could have been obtained, that, if true, would have made the claim “plausible” and that such evidence had not been submitted with the application. Thus, upon receipt of the hearsay statement from the veteran, the Secretary had an obligation under section 5103(a) “to assist [the] claimant[ ] in understanding how to file for benefits and what evidence is required”, ... by advising him that the physician’s statement was needed to “complete” his application. Robinette, 8 Vet.App. at 80 (quoting Morris v. Derwinski, 1 Vet.App. 260, 264 (1991) and omitting citation). This analysis in Robinette applies equally when new and material evidence is needed to complete an application. In this case, the application was incomplete because it was missing evidence that might constitute new and material evidence to reopen the claim. Accordingly, the Court holds that when a veteran has made an application to reopen a claim and the Secretary is on notice of evidence which may prove to be new and material but has not been submitted with the application, the Secretary has a duty under section 5103 to inform a claimant of the evidence that is “necessary to complete the application.” 38 U.S.C. § 5103(a). As we stated in Robinette, the extent of the “Secretary’s section 5103(a) obligation depends on the particular facts of the case and on the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA-benefits claim.” Robi-nette, 8 Vet.App. at 78. Under the circumstances of this ease, the Secretary’s section 5103(a) duty required the Secretary to inform the appellant that a statement from Dr. Dinh on the connection of the appellant’s condition with service was needed to complete the application for reopening his service connection claim, and that duty" }, { "docid": "9820591", "title": "", "text": "Moray v. Brown, 5 Vet.App. 211, 214 (1993) (holding that lay assertions of medical causation cannot serve as the predicate to reopen a claim). Finally, the appellant asserts that VA failed to comply with its duty to notify a claimant of the evidence necessary to complete the application for benefits. 38 U.S.C. § 5103(a). The appellant’s brief states that during the informal hearing presentation, “the veteran’s son related ... that his father indicated that doctors had told him his condition was related to service.” Reply Brief at 1. However, recourse to the hearing transcript reveals that the veteran’s son actually said: “We were always making trips back and forth to the doctors and the diagnosis that he had always told me was that it was service related.” R. at 43. This testimony is too attenuated to show availability of medical records sufficient to trigger the section 5103(a) duty. Nothing in the son’s testimony put the Secretary on notice of the likely existence of competent medical evidence that would be relevant to a full and fair adjudication of the claim. Robinette v. Brown, 8 Vet.App. 69, 77 (1995). Under Robinette, there must be some degree of probability that once the Secretary informs the appellant of the necessity of a statement from the doctor, the appellant will be able to obtain such a statement. Id; see also Beausoleil v. Brown, 8 Vet.App. 459, 465 (1996) (Court stated that there is a § 5103(a) duty “in the limited circumstances where there is an incomplete application that references other known and existing evidence”). The Court thus holds that the circumstances which would trigger a § 5103(a) duty are not present in this case. III. CONCLUSION Accordingly, the Board’s decision is AFFIRMED. STEINBERG, Judge, dissenting. This is a case where the majority’s application of judicial doctrine, without regard to the context of that application, produces a result contrary to law and to the dictates of common sense and fairness. Because no “presumption of regularity” can make the patently irregular regular or the facially unjust just, and for the reasons that follow, I dissent from the" }, { "docid": "21542050", "title": "", "text": "claim. See 38 U.S.C. §§ 7104(b), 5107(a); cf. Ivey v. Derwinski, 2 Vet.App. 320, 322-23 (1992); White v. Derwinski, 1 Vet.App. 519, 521 (1991); compare 38 C.F.R. § 3.159 (1994) (Secretary shall assist claimant in obtaining existing records) with 38 C.F.R. § 3.304(c) (1994) (development of evidence will be accomplished when deemed necessary). The record contains no indication that an examination or an independent medical opinion would plausibly lead to the development of new and material evidence. It is pure speculation that such efforts would produce evidence connecting the appellant’s schizophrenia with his mental problem in service. Additionally, we find unpersuasive the appellant’s assertion that he was misdiagnosed with a personality disorder in service, because there is no medical evidence in the record to support such a conclusion. See Espiritu v. Derwinski 2 Vet.App. 492 (1992). Accordingly, the failure to address the appellant’s assertion that he was misdiagnosed also constitutes nonprejudicial error. Finally, given the holding in Robinette, the Court notes that, even assuming that the Secretary might have a duty under 38 U.S.C. § 5103(a) to notify an appellant that certain medical evidence must be submitted in order to have his claim reopened, the facts here do not satisfy the Robinette criteria. The appellant gave no indication that any relevant evidence existed which could have been deemed “new and material” under 38 U.S.C. § 5108, but which had not been submitted with the application. Thus, because the record does not reflect that VA was. on notice of any evidence linking the appellant’s schizophrenia to his previously diagnosed personality disorder, we conclude that the Secretary could not have had a section 5103(a) duty to notify the appellant regarding the production of any such additional evidence. See Robinette, 8 Vet.App. at 79-80 (holding that nature and extent of section 5103(a) duty depends on evidence that has been submitted in support of a particular claim and evidence of which VA has notice). The decision of the BVA is AFFIRMED." }, { "docid": "22026111", "title": "", "text": "by the Secretary to excuse a claimant from the need to submit evidence fulfilling all of the requirements for a well-grounded claim, see Caluza, supra (nexus-to-service “requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service”), does not mean that any claimant who does not fulfill these requirements is entitled to the duty to assist. See, e.g., 38 C.F.R. § 3.307 (1995) (presumptive service connection for chronic, tropical, or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents); 38 C.F.R. § 3.309 (1995) (diseases subject to presumptive service connection). Whether or not a VA examination should be conducted under 38 C.F.R. § 3.326 is an issue that arises only where a claim has already been determined to be well grounded. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (citing § 3.326 after stating that “VA has a duty to assist a veteran who submits a well-grounded claim ”) (emphasis added); Schroeder v. Brown, 6 Vet.App. 220, 224-25 (1994); Lineberger v. Brown, 5 Vet.App. 367, 369 (1993), appeal dismissed, 29 F.3d 645 (Fed.Cir.1994). The appellant also argues that a remand is warranted in this matter due to the holding of this Court in Robinette v. Brown, 8 Vet.App. 69, 77-79 (1995). Br. at 18-19. In Robinette, the Court remanded the matter to enable the Secretary to fulfill a duty under 38 U.S.C. § 5103(a) to notify an appellant of potentially probative evidence where a “veteran’s statement of what, his physician told him put the Secretary on notice of the likely existence of competent medical evidence that would, if true, be relevant to, indeed necessary for, a full and fair adjudication of the claim.” Robinette, 8 Vet.App. at 77. Here, however, the record is devoid of any such statement, and this is not a case of an incomplete application under section 5103(a) and Robinette, supra. IV. Finally, the appellant argues that he has raised a claim for a total disability rating based on individual unemployability (TDIU) which VA has failed to address, and that the Court should remand" }, { "docid": "23333610", "title": "", "text": "38 U.S.C. § 5103(a). VA’s duty to notify is covered under 38 C.F.R. § 3.159(b). The regulation, in pertinent part, reads: When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. VA will also request that the claimant provide any evidence in the claimant’s possession that pertains to the claim. 38 C.F.R. § 3.159(b) (2001). A threshold issue is whether 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to an attempt to reopen a claim, as distinguished from an original claim for benefits. Prior to the enactment of the VCAA, this Court ruled that under 38 U.S.C. § 5103(a), “[a] veteran filing an original claim for benefits and a veteran attempting to reopen his claim are both claimants making an ‘application for benefits.’ ... The veterans benefits statute does not limit the use of the word ‘application’ to the first original application for benefits.” Graves v. Brown, 8 Vet.App. 522, 524 (1996) (citation omitted). The Graves Court held: [W]hen a veteran has made an application to reopen a claim and the Secretary is on notice of evidence which may prove to be new and material but has not been submitted with the application, the Secretary has a duty under section 5103 to inform a claimant of the evidence that is “necessary to complete the application.” Id. at 525 (quoting 38 U.S.C. § 5103(a)). When the VCAA amended 38 U.S.C. § 5103(a), it added a requirement that the Secretary identify which evidence he will obtain and which evidence the claimant is expected to present. The intent of Congress, as the plain language of the VCAA indicates, was to expand the duties of the Secretary to notify the claimant, not to restrict them. A claimant is defined as “any individual applying for," }, { "docid": "16956517", "title": "", "text": "if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (1997); see also 38 C.F.R. § 19.9 (1997) (“[w]hen ... it is determined that further evidence or clarification of the evidence ... is essential for a proper appellate decision, ... the Board shall remand the case to the agency of original jurisdiction”). , In the present case, as we held in part II.A, above, the veteran has not submitted a well-grounded claim because the record on appeal does not contain competent medical evidence of nexus or evidence of continuity of symptomatology. Therefore, the statutory duty to assist had not attached, and VA’s failure to provide a complete examination (by conducting the recommended x-ray examination) could not have constituted a prejudicial violation of section 5107(a), See 38 U.S.C. § 7261(b) (“Court shall take due account of rule of prejudicial error”); Eden-field, 8 Vet.App. at 391 (Board’s reliance on medical treatise without requisite advance notice to claimant nonprejudicial when claim not well grounded); see also Epps, 126 F.3d at 1468; Littke, supra. The absence of a well-grounded claim, however, does not absolve the Secretary of all duties. Section 5103(a) of title 38, U.S.Code provides: “If a claimant’s application for benefits under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the application.” 38 U.S.C. § 5103(a). This duty to notify arises as to an initial claim when “the Secretary was on notice that relevant evidence may have existed, or could have been obtained, that, if true, would have made the claim ‘plausible’ and that such evidence had not been submitted with the application.” Robinette, 8 Vet.App. at 80; see also McKnight v. Gober, 131 F.3d 1483, 1484-85 (1997) (adopting this Court’s interpretation of § 5103(a) in Robinette, supra); Meyer, 9 Vet.App. at 429-30; cf. Johnson (Ethel) v. Brown, 8 Vet.App. 423, 427 (1995) (missing evidence would not have made claim plausible). Additionally, pursuant to 38 C.F.R. § 3.103(c)(2) (1997), VA hearing officers have" }, { "docid": "16956520", "title": "", "text": "the following analysis, the Court holds that remand of the claim is not required. As noted earlier, the appellant’s claim was not well grounded because he had not offered medical evidence of nexus or evidence of continuity of symptomatology. Although the recommended x-ray examination was never conducted, VA had a section 5103(a) duty to advise the veteran to undergo such an examination only if the resulting evidence would likely have rendered the claim plausible. See Robinette, supra; see also Epps v. Brown, 9 Vet.App. 341, 344 (1996), aff'd, sub nom. Epps v. Gober, supra. In the present matter, the Court cannot hold that any records that may have resulted from such an x-ray examination would have likely rendered the appellant’s claim well grounded because there is no basis for conjecturing what evidence would have been produced by such an examination in July 1992. There is certainly no basis for speculating that such an examination would have produced the missing nexus or continuity-of-symptomatology evidence needed to well ground the claim. Accordingly, by arguing for a section 5103(a) remand on the facts of this case, the appellant is, in effect, urging the Court to adopt a broader interpretation of the section 5103(a) duty to notify than it has previously recognized. To date, this Court has never held that this duty requires VA to inform a claimant what must be done in order to complete a medical examination voluntarily provided by VA, but only that, when a claimant identifies medical evidence that may complete an application but is not in the possession of VA, VA must advise the claimant to attempt to obtain that evidence. See Sutton v. Brown, 9 Vet.App. 553, 570 (1996); Meyer, supra; Robinette, supra; see also Graves v. Brown, 8 Vet.App. 522, 524-25 (1996) (finding section 5103(a) duty in case where appellant had failed to present new and material evidence to reopen); cf. Slater v. Brown, 9 Vet.App. 240, 244 (1996) (no section 5103(a) duty under particular facts of case); Butler v. Brown, 9 Vet.App. 167, 171 (1996); Johnson, supra. Given the Federal Circuit’s express ratification in McKnight, supra," }, { "docid": "16956521", "title": "", "text": "5103(a) remand on the facts of this case, the appellant is, in effect, urging the Court to adopt a broader interpretation of the section 5103(a) duty to notify than it has previously recognized. To date, this Court has never held that this duty requires VA to inform a claimant what must be done in order to complete a medical examination voluntarily provided by VA, but only that, when a claimant identifies medical evidence that may complete an application but is not in the possession of VA, VA must advise the claimant to attempt to obtain that evidence. See Sutton v. Brown, 9 Vet.App. 553, 570 (1996); Meyer, supra; Robinette, supra; see also Graves v. Brown, 8 Vet.App. 522, 524-25 (1996) (finding section 5103(a) duty in case where appellant had failed to present new and material evidence to reopen); cf. Slater v. Brown, 9 Vet.App. 240, 244 (1996) (no section 5103(a) duty under particular facts of case); Butler v. Brown, 9 Vet.App. 167, 171 (1996); Johnson, supra. Given the Federal Circuit’s express ratification in McKnight, supra, of the Court’s section 5103(a) interpretation in Robinette, even were the Court inclined to revisit its Robinette interpretation on the facts of the instant case, which it is not, the Federal Circuit’s McKnight opinion would render it inadvisable for us to do so. Moreover, the appellant’s arguments that section 5103(a) somehow could impose a duty on VA to complete the examination, Appellant’s Br. at 8-12, confuse the section 5107(a) duty for VA itself to assist a claimant, who has, as the veteran here has not, submitted a well-grounded claim, with VA’s section 5103(a) duty to notify a claimant who submits an incomplete application of information that the claimant must submit under certain circumstances set forth in Robinette, supra. See Epps, 9 Vet.App. at 344-45. Consequently, the Court holds that VA had no duty under the Court’s caselaw, ratified by the Federal Circuit in McKnight, supra, interpreting section 5103(a) to advise the appellant to obtain an x-ray examination, and thus its assumed failure to do so was not error. C. Miscellaneous The appellant raises some additional" }, { "docid": "22025468", "title": "", "text": "the veteran’s having quoted his physician’s oral or written communication and necessarily implies that the physician made such a statement”). Presuming the credibility of the letters, that is, that the doctor had, indeed, told the mother and siblings what they implied that he had, cf. Robinette, 8 Vet.App. at 75-76; King, supra, the letters are similar to the “hearsay” statements in Robinette and Graves where the appellant’s account of a physician’s opinion, if stated by the physician himself, would have made the claim well grounded. See Robinette, 8 Vet.App. at 80; Graves, supra. Under the facts of this case, the Court holds that a section 5103(a) duty arose here to inform the veteran that his application was incomplete and that records, or other medical evidence, of Crohn’s-disease treatment from the time the veteran left service would be needed to make the claim “plausible”. The Court will thus vacate the BVA decision and remand the matter for the Secretary to comply with his section 5103(a) duty. Under section 5103(a), the application will remain open and the veteran may submit further evidence during the one-year period following the Secretary’s notification to the veteran of the need for medical evidence of nexus of his disability to service. C. Secretary’s 38 U.S.C. § 7105(d)(1)(B) Duty The appellant argues that the Secretary has a duty under 38 U.S.C. § 7105(d)(1)(B), 38 C.F.R. § 19.29 (1995), and VA General Counsel opinion 16-92 (July 24, 1992) [hereinafter G.C. Prec. 16-92], to explain the law to the appellant in the SOC. Br. at 9-10. In the instant case, he asserts that the SOC should have explained the well-grounded-claim requirement, and that it is unfair for the BVA later to rely on case precedent that was not first explained in the SOC. Br. at 9. The appellant is correct in stating that the August 3, 1994, BVA decision relied on some Court precedents issued after the date of the SOC and not mentioned in the SOC. However, the statutory and regulatory authority cited by the appellant does not establish any VA duty to notify a claimant of changes in" }, { "docid": "9820605", "title": "", "text": "also believe that the majority opinion articulates the 38 U.S.C. § 5103(a) duty too narrowly in this ease when it concludes that the son’s testimony “is too attenuated to show availability of medical records sufficient to trigger the section 5103(a) duty.” Ante at 202. I find no such existing-medical-record requirement in Court precedent, and this is surely the worst case imaginable in which to create one. See Robinette v. Brown, 8 Vet.App. 69, 80 (1995) (on the facts of the ease, Secretary “was on notice that relevant evidence may have existed, or could have been obtained ... ”) (emphasis added); cf. Meyer v. Brown, 9 Vet.App. 425, 429-30 (1996) (where no particular statement from the doctor was expressly identified and statements by mother and siblings regarding veteran’s treatment by deceased father invoked section 5103(a) duty to notify). It is arguable that under Robinette and Meyer the son’s remarks in this case might have sufficed to invoke a section 5103(a) duty if this were a regular case. However, this is a special ease, insofar as the entire claims folder has been lost. In such a case, VA should have a particular duty to inform the appellant of the need to supplement the missing record and that the missing record also causes her application to be “incomplete”. That is, in such a case I would find a heightened Robinette duty under section 5103(a) for the same reason the Court found in O’Hare and Moore heightened reasons-or-bases and duty-to-assist requirements in a lost-records case — that is, that this Court is unnecessarily hampered in its review of the BVA decision absent additional, heightened effort by VA to supply a more complete record. C. 38 C.F.R. § 3.103(c)(2) Duty The majority opinion also neglects to examine or comment upon the violation of the regulatory duty under 38 C.F.R. § 3.103(c)(2) of VA hearing officers to “suggest the submission of evidence which the claimant may have overlooked”. Even in the absence of the extraordinary circumstances evidenced in this case by the lost claims file, it seems clear to me that the § 3.103(c)(2) duty was" }, { "docid": "9820604", "title": "", "text": "5107(a) is the evidence that would be “sufficient to justify a belief by a fair and impartial individual that the claim” is “plausible ... or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Surely, a fair and impartial individual assessing the well groundedness of the appellant’s claim would set the well-groundedness threshold very low and conclude that the claim is plausible in view of the unique circumstances here present. See Woodson v. Brown, 87 F.3d 1304, 1307 (Fed.Cir.1996) (withholding judgment on “what effect, if any, the loss of a veteran’s records due to no fault of the veteran ... has on that veteran’s burden of proof under [38 U.S.C.] § 5107(a) when the lost records may be necessary to establish eligibility for benefits”), affirming in part and dismissing in part, 8 Vet.App. 352 (1995); Russo v. Brown, 9 Vet.App. 46, 50 (1996) (implicitly presuming that claim is well grounded, and proceeding to adjudication on merits, where SMRs were lost and 38 U.S.C. § 1154(b) applied). B. 38 U.S.C. § 5103(a) Duty I also believe that the majority opinion articulates the 38 U.S.C. § 5103(a) duty too narrowly in this ease when it concludes that the son’s testimony “is too attenuated to show availability of medical records sufficient to trigger the section 5103(a) duty.” Ante at 202. I find no such existing-medical-record requirement in Court precedent, and this is surely the worst case imaginable in which to create one. See Robinette v. Brown, 8 Vet.App. 69, 80 (1995) (on the facts of the ease, Secretary “was on notice that relevant evidence may have existed, or could have been obtained ... ”) (emphasis added); cf. Meyer v. Brown, 9 Vet.App. 425, 429-30 (1996) (where no particular statement from the doctor was expressly identified and statements by mother and siblings regarding veteran’s treatment by deceased father invoked section 5103(a) duty to notify). It is arguable that under Robinette and Meyer the son’s remarks in this case might have sufficed to invoke a section 5103(a) duty if this were a regular case. However, this is a special ease, insofar as the" }, { "docid": "16956519", "title": "", "text": "a regulatory duty to “suggest the submission of evidence which the claimant may have overlooked”. See Douglas v. Derwinski, 2 Vet.App. 103, 110 (1992) (quoting 38 C.F.R. § 3.103(c)(2) (1991)), reaff'd on this ground, Douglas v. Derwinski, 2 Vet.App. 435, 440A2 (1992) (en banc). Because there was no such hearing in this case, there could not have been a violation of the § 3.103(c)(2) duty here. The appellant contends that the Secretary violated the section 5103(a) duty to notify by failing to inform him that an x-ray examination was necessary to complete his medical examination, and that his claim must be remanded because such an examination may have produced sufficient medical evidence to well ground his claim. Appellant’s Br. at 10. Because the record does not indicate whether or not the veteran was aware of the examining physician’s reference in July 1992 to a recommended x-ray examination, the Court will assume, for purposes of deciding whether VA provided adequate notice under section 5103(a), that he was not aware of such a reference. Nonetheless, based on the following analysis, the Court holds that remand of the claim is not required. As noted earlier, the appellant’s claim was not well grounded because he had not offered medical evidence of nexus or evidence of continuity of symptomatology. Although the recommended x-ray examination was never conducted, VA had a section 5103(a) duty to advise the veteran to undergo such an examination only if the resulting evidence would likely have rendered the claim plausible. See Robinette, supra; see also Epps v. Brown, 9 Vet.App. 341, 344 (1996), aff'd, sub nom. Epps v. Gober, supra. In the present matter, the Court cannot hold that any records that may have resulted from such an x-ray examination would have likely rendered the appellant’s claim well grounded because there is no basis for conjecturing what evidence would have been produced by such an examination in July 1992. There is certainly no basis for speculating that such an examination would have produced the missing nexus or continuity-of-symptomatology evidence needed to well ground the claim. Accordingly, by arguing for a section" }, { "docid": "22028043", "title": "", "text": "officer’s decision, the May 1992 rating decision, and the June 1992 letter, all of which clearly and unequivocally informed the appellant that his claim that his heart disorder claim was denied because there had been no medical evidence presented to support his conjectures. R. at 214-15, 218, 226. These documents reiterated the appellant’s opinion that, inter alia, his service-connected skin condition caused him to “develop thrombo-phlebitis which in turn[,] as the result of a transient blood elot[,] caused his ejection heart murmur,” and informed the appellant of the type of evidence that would support his claim. Ibid. Second, even assuming that the appellant had not been informed that medical evidence was required to well ground his claim, Robinette does not compel the result the appellant seeks. The Robinette opinion held that 38 U.S.C. § 5103(a) imposes an obligation upon the Secretary to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application which references other known and existing evidence. Robinette, 8 Vet.App. at 80. In Robinette, which stated that the § ' 5103(a) duty must be based on the facts of each case, VA was put on notice of a physician’s statement that a disability was “most probably” related to service by a statement of the veteran in a letter to VA. Id. at 78-80. In this case, however, the appellant’s application was not incomplete and VA was not on notice of the existence of any evidence which would have made the claim plausible. The Court recently declined to extend the holding of Robinette under similar circumstances. See Beausoleil v. Brown, 8 Vet.App. 459, 465 (1996). Also unavailing is the appellant’s argument that Goss v. Brown, 9 Vet.App. 109 (1996), imposes an obligation on VA to “suggest that the claimant submit evidence which he may have overlooked but which would be advantageous to him.” Id. at 114. Unlike the appellant here, the claimant in Goss had submitted a well-grounded claim. Further, in Goss there was an indication that there was rele vant evidence that had not been submitted. Similarly" }, { "docid": "16956518", "title": "", "text": "claim not well grounded); see also Epps, 126 F.3d at 1468; Littke, supra. The absence of a well-grounded claim, however, does not absolve the Secretary of all duties. Section 5103(a) of title 38, U.S.Code provides: “If a claimant’s application for benefits under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the application.” 38 U.S.C. § 5103(a). This duty to notify arises as to an initial claim when “the Secretary was on notice that relevant evidence may have existed, or could have been obtained, that, if true, would have made the claim ‘plausible’ and that such evidence had not been submitted with the application.” Robinette, 8 Vet.App. at 80; see also McKnight v. Gober, 131 F.3d 1483, 1484-85 (1997) (adopting this Court’s interpretation of § 5103(a) in Robinette, supra); Meyer, 9 Vet.App. at 429-30; cf. Johnson (Ethel) v. Brown, 8 Vet.App. 423, 427 (1995) (missing evidence would not have made claim plausible). Additionally, pursuant to 38 C.F.R. § 3.103(c)(2) (1997), VA hearing officers have a regulatory duty to “suggest the submission of evidence which the claimant may have overlooked”. See Douglas v. Derwinski, 2 Vet.App. 103, 110 (1992) (quoting 38 C.F.R. § 3.103(c)(2) (1991)), reaff'd on this ground, Douglas v. Derwinski, 2 Vet.App. 435, 440A2 (1992) (en banc). Because there was no such hearing in this case, there could not have been a violation of the § 3.103(c)(2) duty here. The appellant contends that the Secretary violated the section 5103(a) duty to notify by failing to inform him that an x-ray examination was necessary to complete his medical examination, and that his claim must be remanded because such an examination may have produced sufficient medical evidence to well ground his claim. Appellant’s Br. at 10. Because the record does not indicate whether or not the veteran was aware of the examining physician’s reference in July 1992 to a recommended x-ray examination, the Court will assume, for purposes of deciding whether VA provided adequate notice under section 5103(a), that he was not aware of such a reference. Nonetheless, based on" }, { "docid": "11961513", "title": "", "text": "evidence that might constitute new and material evidence to reopen the claim. Accordingly, the Court holds that when a veteran has made an application to reopen a claim and the Secretary is on notice of evidence which may prove to be new and material but has not been submitted with the application, the Secretary has a duty under section 5103 to inform a claimant of the evidence that is “necessary to complete the application.” 38 U.S.C. § 5103(a). As we stated in Robinette, the extent of the “Secretary’s section 5103(a) obligation depends on the particular facts of the case and on the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA-benefits claim.” Robi-nette, 8 Vet.App. at 78. Under the circumstances of this ease, the Secretary’s section 5103(a) duty required the Secretary to inform the appellant that a statement from Dr. Dinh on the connection of the appellant’s condition with service was needed to complete the application for reopening his service connection claim, and that duty to inform was not met here. III. CONCLUSION Accordingly, upon consideration of the record, the briefs, and the supplemental memo-randa, the Court VACATES the August 1994 decision of the BVA and REMANDS the matter for further proceedings in accordance with section 5103(a) and consistent .with this opinion and with Robinette, 8 Vet.App. at 80." }, { "docid": "22025465", "title": "", "text": "VA on notice that relevant, competent medical evidence might exist in the form of treatment records kept by Dr. Meyer or others, and that VA should have advised the claimant to obtain and submit any such records or other corroborative evidence. Br. at 8. In Robinette, the Court held that where a claimant had not submitted a well-grounded claim and “the Secretary was on notice that relevant evidence may have existed, or could have been obtained, that, if true, would have made the claim ‘plausible’ and that such evidence had not been submitted with the application”, then that application was “incomplete” and the Secretary had an obligation under 38 U.S.C. § 5103(a) to notify the claimant of the evidence necessary to complete it. Robinette, 8 Vet.App. at 80. The indication of the existence of missing relevant evidence in Robinette was the claimant’s statement that his doctor “feels that” his diabetes had begun during service. Id. at 73. In Graves, the Court ruled that section 5103(a) required a remand where an appellant had stated that “Dr. Ha Dinh, who is the Staff Cardiologist at the V.A. medical center in Little Rock, Arkansas - has also reviewed my military records, release from active duty, and finds continuity with my present condition.” Graves, 8 Vet.App. at 523-24. The Court explained that, although new and material evidence had not been submitted to reopen the prior disallowance of the claim, “the application was incomplete because it was missing evidence that might constitute new and material evidence to reopen” the prior disallowance, “evidence that [was] ‘necessary to complete the application.’ ” Id. at 525. In Johnson (Ethel) v. Brown, the Court held that there was no section 5103(a) duty in a case where, even if a physician’s statement had been obtained and stated what the appellant said it would state, it would not provide the requisite medical nexus evidence to well ground the claim. Johnson, 8 Vet.App. 423, 427 (1995) (holding that if appellant had presented statement from physician to effect that, veteran had had heart attack “10, 20, 30 years maybe more” before 1981, such" } ]

[ { "docid": "8525266", "title": "", "text": "each twelve-month pe riod after his nineteenth birthday and prior to his matriculation at a member institution shall count as one year of varisty competition.” NCAA By-Law 4-l-(f)(2) (NCAA Manual, p. 49). [As applied to intercollegiate soccer, this rule has not changed in substance since January, 1970, except that in January, 1971, the age limit for measuring foreign competition was lowered from age 20 to age 19.] ORDER The foreign-student rule, NCAA ByLaw 4 — 1—(f) (2), is declared to constitute a denial of equal protection under the Fourteenth Amendment to the United States Constitution, its future enforcement by NCAA is permanently enjoined, and the NCAA is directed to expunge any penalty imposed upon Howard University, or directly or indirectly on any soccer player matriculating at Howard University, based solely upon this By-Law. In all other respects the complaint is dismissed as to each plaintiff. Each party shall bear its costs. So ordered. . It is unnecessary to consider the Court’s possible jurisdiction under the evolving doctrine of Marjorie Webster Jr. Col. v. Middle States Assn. of C&SS, 139 U.S.App.D.C. 217, 432 F.2d 650 (1970), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). . Several federal courts have recently considered similar challenges to the procedural rules of the NCAA. See Buckton v. NCAA, 366 F.Supp. 1152 (D.Mass.1973) ; Samara v. NCAA, C.A. No. 104-72-A (E.D.Va. May 1, 1973) ; Parish v. NCAA, 361 F.Supp. 1214 (W.D.La.1973) (summary judgment denied), 361 F.Supp. 1220 (W.D.La.1973) (preliminary injunction denied) ; Assoc. Students, Inc. v. NCAA, C. No. S-2754 (E.D.Cal. May 25, 1973) (preliminary injunction granted) ; Curtis v. NCAA, C-71-2088-ACW (N.D.Cal. Feb. 1, 1972) (preliminary injunction granted)." } ]

[ { "docid": "11793355", "title": "", "text": "are State agencies to the extent that the high school athletic associations control their respective members at least insofar as . regulations, sanctions, and discipline are concerned. Moreover, State funds are used by public schools to pay membership dues in this association. . Moreover, the Parish court asserted that regulation of intercollegiate athletics was beyond the effective reach of any single state and that there was little doubt “that were the NCAA to disappear tomorrow, government would soon step in to fill the void.” Thus,' the NCAA by taking upon itself the role of coordinator and overseer of college athletics is performing a traditional governmental function. 506 F.2d at 1032-33. The Seventh Circuit, in upholding the constitutionality of the “2.0 Rule”, which has superceded the “1.6 Rule” under attack here, did not reach the state action question. Schubert v. NCAA, 506 F.2d 1402 (7th Cir. 1974). . Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974) (unreported order); Buckton v. NCAA, 366 F.Supp. 1152 (D.Mass.1973); Curtis v. NCAA, C-712088 ACW (N.D.Cal.1972) (unreported opinion). See also Note, Judicial Review of Disputes Between Athletes and the National Collegiate Athletic Association, 24 Stan.L.Rev. 903, 916-28 (1972). . See also Oklahoma High School Athletic Ass’n v. Bray, 321 F.2d 269 (10th Cir. 1963) (eligibility); Gilpin v. Kansas State High School Activities Ass’n, Inc., 377 F.Supp. 1233 (D.Kan.1973) (sex discrimination); Taylor v. Alabama High School Athletic Ass’n, 336 F.Supp. 54 (M.D.Ala.1972) (disciplining basketball team). Compare Kelly v. Wisconsin Interscholastic Athletic Ass’n, 367 F.Supp. 1388 (E.D.Wis.1974) (complaint dismissed for failure to allege state action). . See, e. g., Gilpin v. Kansas State High School Activities Ass’n, Inc., supra note 8, 377 F.Supp. at 1233; Reed v. Nebraska School Activities Ass’n, 341 F.Supp. 258, 261 (D.Neb.1972). . It is because the question in this case is one of entanglement that the Supreme Court’s latest pronouncements on state action, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), can be of limited guidance to us. In Moose" }, { "docid": "11660499", "title": "", "text": "a temporary restraining order was granted on December 9, 1974, following a hearing at which all parties then joined were represented by counsel. A more exhaustive hearing on plaintiff’s motion for a preliminary injunction was held on December 17, 1974. From the evidence presented at that hearing, the court makes the following findings of fact and conclusions of law. I The plaintiff is an American citizen and a resident of Melrose, Massachusetts. He is currently a full-time student at Northeastern’s Boston campus, and receives no financial aid from the University. He is in good academic standing. The defendant N.C.A.A. is an unincorporated association of over 600 colleges and universities, half of which are state institutions. The N.C.A.A. sets eligibility rules for student-athletes at its member institutions and also sponsors the N.C.A.A. hockey tournament for the championship of college hockey in the United States. See Buckton v. N.C.A.A., 366 F.Supp. 1152, 1155 (D.Mass.1972). It conducts its affairs in close cooperation with the Eastern Collegiate Athletic Conference (E.C.A.C.), an unincorporated association of approximately 200 four-year colleges and universities in the Eastern United States. In April 1974, the plaintiff enrolled in Northeastern’s College of Business Administration. Upon matriculation, the plaintiff informed Northeastern officials of his desire to participate in the school’s intercollegiate ice hockey program. Plaintiff was then asked to complete both an “Intercollegiate Ice Hockey Affidavit” prepared by the E. C.A.C. and an “Ice Hockey Questionnaire” from the N.C.A.A. The completed documents revealed that during the last three years of high school, and for the two hockey seasons between his high school graduation and admission to college, the plaintiff had played for a succession of Canadian and American “amateur” hockey teams. Plaintiff received compensation from these teams not only while he was attending school, but also during the two years that he was not pursuing his education. On the basis of this information, Gallagher concluded that plaintiff was in violation of the N.C.A.A. and E.C.A. A. rules of amateurism and therefore ineligible for intercollegiate hockey. Neverthless, Gallagher sought “waivers” from both organizations. If granted, these waivers would have allowed Northeastern to permit" }, { "docid": "11660521", "title": "", "text": "not indicate the particular eligibility rules which Mr. Gallagher felt plaintiff had violated. But see note 4 and accompanying text infra. . In Buckton, the two plaintiffs were Canadian citizens and the court held that the application of the N.C.A.A. eligibility rules in effect at that time constituted de facto discrimination against them on the basis of national origin. Buckton v. N. C. A. A., 366 F.Supp. at 1157. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Because of this holding, the court did not have occasion to decide whether the eligibility rules as applied in that ease would have survived analysis against the more lenient standard of “minimum rationality” and considers the issue still open. . [Section 1] (a) A student-athlete shall not be eligible for participation in an intercollegiate sport if: (1) He takes or has taken pay, or has accepted the promise of pay, in any form, for participation in that sport, or (2) He has entered into an agreement of any kind to compete in professional athletics in that sport, or to negotiate a professional contract in the sport, or (3) He has directly or indirectly used his athletic skill for pay in any form in that sport; however, a student-athlete may accept scholarships or educational grants-in-aid from his institution which do not conflict with the governing legislation of this Association. (Revised : 1/9/74) (b) Any student-athlete who signs or who has ever signed a contract or commitment of any kind to play professional athletics in a sport, regardless of its legal enforceability or the consideration (if any) received; plays or has ever played on any professional athletic team in a sport, or receives or has ever received, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional organization in a sport for any purpose whatsoever, except as permitted by the governing legislation of this Association, no longer shall be eligible for intercollegiate athletics in that sport. (Revised: 1/9/74) The N.C.A.A. on October 25, 1974 also issued 4 new official interpretations of" }, { "docid": "23655573", "title": "", "text": "N.C.A.A., C-71 2088 ACW (N.D.Cal.1972) (unreported opinion). The Seventh Circuit did not. reach the jurisdictional issue in Schubert v. N.C.A.A., supra. . In addition to the opinions cited by the district. court in this case, 361 F.Supp. at 1214, see Wright v. Arkansas Activities Ass’n, 8 Cir. 1974, 501 F.2d 25; Gilpin v. Kansas State High School Activities Ass’n, D.Kansas 1974, 377 F.Supp. 1233; Baltic Ind. School Dist. v. South Dakota High School Activities Ass’n, D.S.D.1973, 362 F.Supp. 780. . McDonald was decided before the Ninth Circuit issued its opinion in the Associated Students case, see note 7 supra, and is presumably overruled on the state action issue by that opinion. . See Parish v. N.C.A.A., supra, 361 F. Supp. at 1216-1219; Howard University v. N.C.A.A., supra, 367 F.Supp. at 928-929; Buckton v. N.C.A.A., supra, 366 F.Supp. at 1156-1157. In determining whether the NCAA’s activities constitute state action in the constitutional sense, it is of no significance that state-supported schools, as well as private ones, join the association voluntarily. On the other hand, because Centenary was not made a defendant here, we need not decide whether the action of a private college that voluntarily concurs in the decisions of the NCAA thereby also becomes state action. . As counsel for the NCAA noted at oral argument, the association was formed by persons on the strictly “educational” side of the colleges and universities, and not by the athletic departments. The large role played by the NCAA in regulating the educational effects of the mushrooming participation in, and expenditures on, intercollegiate sports is at least one factor distinguishing the association from other organizations of nationwide scope concerned with athletics. See King v. Little League Baseball, Inc., 6 Cir. 1974, 580 F.2d 264. . Of the five appellants, only Robert Parish is blaelc. . But see Comment, Equal Protection and Intelligence Classifications, 26 Stan.L.Rev. 647, 655 (1974) (“The argument that intelligence classifications are invalid because they are suspect should fail”). . The substance of one witness’ testimony is revealed in the following excerpt: Q. In your opinion, are these aptitude tests valid indicators" }, { "docid": "11660520", "title": "", "text": "as follows: Academic Compensation Year Team Received 1969-70 Verdun Maple $10 living expenses Leafs $25 room and board (directly to landlord) 1970-71 Vendun Maple $10 living expenses Leafs (until Nov.) $25 room and board (directly to landlord) Manchester (N.H.) unknown Monarchs 1971-72 Montreal Junior $60 per week Canadiens (January only) $500 bonus for signing $500 tuition expenses (directly to Jones’ family) 1972-73 Montreal Bleu $60 per week Blanc Rouge (formerly known $500 tuition as the Junior expenses Canadiens) (until Nov.) LaValle Nationals $60 per week (until completion of post-season play-offs) 1973-74 Manchester (N.H.) $20 maximum Monarchs per game travel expenses In order to complete his high school education, the plaintiff transferred to the Verdun Catholic High School while he was playing in Canada. The plaintiff graduated from the Melrose (Massachusetts) High School in June 1972. The plaintiff was traded in mid-season. Plaintiff’s new team apparently assumed the Canadiens’ contractual obligations. The record does not indicate whether the plaintiff received a bonus for play-offs pursuant to the 1971 contract. . The record at this point does not indicate the particular eligibility rules which Mr. Gallagher felt plaintiff had violated. But see note 4 and accompanying text infra. . In Buckton, the two plaintiffs were Canadian citizens and the court held that the application of the N.C.A.A. eligibility rules in effect at that time constituted de facto discrimination against them on the basis of national origin. Buckton v. N. C. A. A., 366 F.Supp. at 1157. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Because of this holding, the court did not have occasion to decide whether the eligibility rules as applied in that ease would have survived analysis against the more lenient standard of “minimum rationality” and considers the issue still open. . [Section 1] (a) A student-athlete shall not be eligible for participation in an intercollegiate sport if: (1) He takes or has taken pay, or has accepted the promise of pay, in any form, for participation in that sport, or (2) He has entered into an agreement of any kind to compete in" }, { "docid": "7448584", "title": "", "text": "to amateur standing. It is to be noted that prior to 1971 neither defendant Association specified that playing for a Major Junior A hockey team would be grounds for ineligibili ty. As of the 1971-72 season, however, such play was covered by the following regulation: Any student-athlete who has participated as a member of the Canadian Amateur Hockey Association’s major junior A hockey classification shall not be eligible for intercollegiate athletics. N.C.A.A. Const., Art. 3, § 1, O.I.5. (1973-74); E.C.A.C. Bylaws, Art. 3, § 1, O.I.5. (1972). Prior to the 1971-72 hockey season both plaintiffs withdrew from Major Junior A teams and accepted classification at levels of competition lower than Major Junior A, thereby meeting the terms of the aforementioned regulation. During the 1971-72 hockey season Buckton played one exhibition game and two early season contests for the Oshawa Generals Major Junior A team, but he maintained his classification as a Junior B player. Ontario Hockey Association regulations permit a limited amount of interclassification play. Buckton’s play was within these limits. Nonetheless, defendant Associations cite such play as a factor in their determination of Buckton’s ineligibility. The court determines, however, that plaintiff has a substantial likelihood of establishing that such play did not violate defendants’ rules since even his minimal participation was not “as a member of the Canadian Amateur Hockey Association’s major junior A hockey classification.” O.I.5. Marzo played the entire 1971-72 season with a Junior A team, a lower classification than Major Junior A. This particular regulation, therefore, is not an issue with respect to his case. The E.C.A.C. is an unincorporated association of approximately 212 four year colleges and universities. It conducts the annual E.C.A.C. Division I hockey tournament. The E.C.A.C. conducts its affairs in close cooperation with the N. C.A.A. Its regulations pertinent to the areas involved in this litigation are identical to those of the N.C.A.A. The N.C.A.A. is an unincorporated association of approximately 664 colleges and universities, half of which are state institutions. It conducts the annual N. C.A.A. hockey tournament for the championship of college hockey in the United States. The two finalists" }, { "docid": "7448585", "title": "", "text": "such play as a factor in their determination of Buckton’s ineligibility. The court determines, however, that plaintiff has a substantial likelihood of establishing that such play did not violate defendants’ rules since even his minimal participation was not “as a member of the Canadian Amateur Hockey Association’s major junior A hockey classification.” O.I.5. Marzo played the entire 1971-72 season with a Junior A team, a lower classification than Major Junior A. This particular regulation, therefore, is not an issue with respect to his case. The E.C.A.C. is an unincorporated association of approximately 212 four year colleges and universities. It conducts the annual E.C.A.C. Division I hockey tournament. The E.C.A.C. conducts its affairs in close cooperation with the N. C.A.A. Its regulations pertinent to the areas involved in this litigation are identical to those of the N.C.A.A. The N.C.A.A. is an unincorporated association of approximately 664 colleges and universities, half of which are state institutions. It conducts the annual N. C.A.A. hockey tournament for the championship of college hockey in the United States. The two finalists of the E.C.A. C. tournament are eligible to compete in the N.C.A.A. tournament. The E.C.A.C. and N.C.A.A. tournaments are restricted to members of the respective Associations. B.U. is a member of both the E.C.A.C. and the N.C.A.A. No comparable associations or conferences are available to B.U. Should B.U. permit plaintiffs to play hockey in the face of a determination of ineligibility by the defendant Associations, it would run the risk of a variety of sanctions, including forfeiture of those games in which plaintiffs participated. Since commencement of this action, both defendant Associations have agreed to review their determinations with respect to plaintiffs’ eligibility. Assuming this Court preliminarily enjoins B.U. from prohibiting plaintiffs from participating with its hockey team because of the aforementioned alleged violations, the defendant E.C.A.C. has stipulated it will not impose any sanctions against B.U., should such order be subsequently vacated after a determination by this court of the merits. The N.C.A.A., however, reserves any rights it may have to sanction B.U. should such preliminary order be subsequently vacated. To succeed on their" }, { "docid": "11793354", "title": "", "text": "who have predicted minimum grade point averages of at least 1.600 (based on a maximum of 4.000) as determined by the Association’s national prediction tables or Association-approved conference or institutional tables. . . . NCAA By-law 4-6(b)(1), A. 175. . The state action requirement also arises in cases dealing with the “under color of state law” standard of 42 U.S.C. § 1983 (1970). The Supreme Court has indicated that the “under color of state law” requirement is equivalent to the constitutional state action standard, United States v. Price, 383 U.S. 787, 794 n.7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), and principles derived from both lines of cases are used interchangeably. See, e. g., Parish v. NCAA, 506 F.2d 1028, 1031 n.6 (5th Cir. 1975); Bryant v. Jefferson Federal Savings and Loan Ass’n, 166 U.S.App.D.C. -, - n.4, 509 F.2d 511, 513 n.4 (1974). . The district court in Parish relied heavily on the high school line of cases, discussed infra and opined: Although NCAA is a nationwide association, it does control public schools which are State agencies to the extent that the high school athletic associations control their respective members at least insofar as . regulations, sanctions, and discipline are concerned. Moreover, State funds are used by public schools to pay membership dues in this association. . Moreover, the Parish court asserted that regulation of intercollegiate athletics was beyond the effective reach of any single state and that there was little doubt “that were the NCAA to disappear tomorrow, government would soon step in to fill the void.” Thus,' the NCAA by taking upon itself the role of coordinator and overseer of college athletics is performing a traditional governmental function. 506 F.2d at 1032-33. The Seventh Circuit, in upholding the constitutionality of the “2.0 Rule”, which has superceded the “1.6 Rule” under attack here, did not reach the state action question. Schubert v. NCAA, 506 F.2d 1402 (7th Cir. 1974). . Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974) (unreported order); Buckton v. NCAA, 366 F.Supp. 1152 (D.Mass.1973); Curtis v. NCAA, C-712088 ACW (N.D.Cal.1972) (unreported opinion). See also Note, Judicial" }, { "docid": "11660498", "title": "", "text": "OPINION AND ORDER TAURO, District Judge. This is an action brought by a Northeastern University (Northeastern) hockey player against the National Collegiate Athletic Association (N.C.A.A.), the N.C.A.A. Executive Director Walter Byers (Byers), Northeastern, and Northeastern’s Director of Athletics, Herbert H. Gallagher (Gallagher). The plaintiff seeks to enjoin the defendants from declaring him ineligible to play intercollegiate ice hockey. He also asks this court to restrain the N.C.A.A. and Byers from imposing sanctions upon Northeastern for either permitting him to participate in intercollegiate hockey, or for providing him with financial assistance on the same basis that it provides such aid to other student-athletes with demonstrable financial need. The complaint sets forth two theories of action. Count I is a civil rights claim alleging denial of due process and equal protection under 42 U.S.C. § 1983 and jurisdiction pursuant to 28 U.S.C. § 1343. Count II is an antitrust claim alleging violations of sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2) and jurisdiction pursuant to 28 U.S.C. § 1337. Plaintiff's requests for a temporary restraining order was granted on December 9, 1974, following a hearing at which all parties then joined were represented by counsel. A more exhaustive hearing on plaintiff’s motion for a preliminary injunction was held on December 17, 1974. From the evidence presented at that hearing, the court makes the following findings of fact and conclusions of law. I The plaintiff is an American citizen and a resident of Melrose, Massachusetts. He is currently a full-time student at Northeastern’s Boston campus, and receives no financial aid from the University. He is in good academic standing. The defendant N.C.A.A. is an unincorporated association of over 600 colleges and universities, half of which are state institutions. The N.C.A.A. sets eligibility rules for student-athletes at its member institutions and also sponsors the N.C.A.A. hockey tournament for the championship of college hockey in the United States. See Buckton v. N.C.A.A., 366 F.Supp. 1152, 1155 (D.Mass.1972). It conducts its affairs in close cooperation with the Eastern Collegiate Athletic Conference (E.C.A.C.), an unincorporated association of approximately 200 four-year colleges and" }, { "docid": "11660501", "title": "", "text": "plaintiff to represent the school in intercollegiate competition without fear of sanctions by either association. On September 11, 1974, the E.C.A.C. granted such a “waiver,” but on November 18, 1974, the N.C.A.A. denied Northeastern’s request. Following the N.C.A.A.’s decision, Northeastern declared that the plaintiff was ineligible to represent the University in intercollegiate hockey games for the 1974-75 season. The plaintiff then brought this action. II In considering plaintiff’s application for a preliminary injunction, this court must determine whether there is a substantial likelihood of his prevailing on the merits, and then balance the possible irreparable injury to the plaintiff, if relief is denied, against the potential harm to the defendants if relief is granted. See, e. g., Allison v. Froehlke, 470 F.2d 1123 (5th Cir. 1972) (Moore, J.). Based on the evidence adduced in this case so far, most of which came to light for the first time during the taking of testimony at the December 17 hearing, plaintiff has failed to show a substantial likelihood of prevailing on the merits and so preliminary relief must be denied. This court has held in the past that the actions of the N.C.A.A., declaring student-athletes ineligible to participate in intercollegiate hockey, constituted state action sufficient to meet the requirements of 42 U.S.C. § 1983. Buckton v. N. C. A. A., 366 F.Supp. 1152, 1156-57 (D.Mass.1973). Since Buck-ton, two circuit courts and one district court, faced with the same issue, reached the identical result. See Parish v. N. C. A. A., 506 F.2d 1028 (5th Cir. 1975), citing Associated Students, Inc. v. N. C. A. A., 493 F.2d 1251, 1254-55 (9th Cir. 1974); Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974); Howard University v. N. C. A. A., 367 F.Supp. 926, 929 (D.D.C.1973). See also Curtis v. N. C. A. A., C-71 2088 ACW (N.D.Cal.1972). But see McDonald v. N. C. A. A., 370 F.Supp. 625 (C.D.Cal.1974). Recently, another district court has held that the actions of a private university constitute state action as well. Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473 (E.D.Pa.1974). With respect to the issue of state" }, { "docid": "11660515", "title": "", "text": "not as a mechanism for the resolution of controversies in the liberal arts or in the learned professions. Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). See Goldfarb v. Virginia State Bar, 497 F.2d 1, 15 (4th Cir.), cert. granted 419 U.S. 963, 95 S.Ct. 223, 42 L.Ed.2d 178 (1974); cf. Nankin Hospital v. Michigan Hospital Service, 361 F.Supp. 1199, 1201 (E.D.Mich.1973). Accordingly, the instant case is particularly inappropriate for application of the Sherman Act. The plaintiff is currently a student, not a businessman in the traditional sense, and certainly not a “competitor” within the contemplation of the antitrust laws. The “competition” which the plaintiff seeks to protect does not originate in the marketplace or as a sector of the economy but in the hockey rink as part of the educational program of a major university. And, of equal significance, plaintiff has so far not shown how the action of the N.C.A. A. in setting eligibility guidelines has any nexus to commercial or business activities in which the defendant might engage. Even assuming, however, that the activities of the defendant at issue in this lawsuit are governed by the antitrust laws, it is unlikely that the plaintiff will be able to show a violation of either section 1 or section 2. Plaintiff’s primary contention is that the action of the N.C.A.A. denying him access to intercollegiate hockey competition amounts to a group boycott, a classic per se violation of section 1. Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951). See Whitten v. Paddock Pool Builders, Inc., 508 F.2d 547, 559 (1st Cir. 1974). In essence, the plaintiff is arguing that the actions of the N.C.A.A. member institutions amount to a “secondary boycott” since the Association’s pressure initially falls upon Northeastern. Cf. College Athletic Placement Service, Inc. v. N. C. A. A., Civil No. 74-1144 (D.N.J. August 22, 1974), aff’d, 506 F.2d 1050 (3rd Cir. 1974)." }, { "docid": "23655571", "title": "", "text": "Oct. 22, 1974). . The district judge ordered Centenary joined as a party plaintiff to this action. . The XCAA placed Centenary on indefinite probation for incorrectly certifying appellants as eligible for basketball scholarships and other financial aid. Centenary could reduce the duration of its probation from indefinite to two years by “conducting its intercollegiate athletic program in accordance with all requirements and interpretations of NCAA bylaw 4-6-(b) [1-600 rule].” (App. at 57). The school declined to challenge this decision through the XCAA’s own appeals procedure, which is available only to the institution and not. to individual athletes. . Parish v. N.C.A.A., W.D.La.1973, 361 F.Supp. 1214. . Parish v. N.C.A.A., W.D.La.1973, 361 F.Supp. 1220. . The parties, as well as the district court, discuss this point in terms of the presence or absence of “state action.” The semantic distinction carries no substantive consequences, however, since the “under color of state law” requirement of 42 U.S.C. § 1983 simply reflects the state action requirement of the 14th Amendment. See United States v. Price, 1966, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267; Gibbs v. Titelman, 3 Cir. 1974, 502 F.2d 1107, 1110; Shirley v. State National Bank of Connecticut, 2 Cir. 1974, 493 F.2d 739, 741. Hut see Lavoie v. Bigwood, 1 Cir. 1972, 457 F.2d 7, 15 (“color of state law” requirement may demand greater state involvement than “state action”). Early in the proceedings appellants sought to establish jurisdiction under 42 U.S.C. § 1981, which of course extends to private action. Because this claim was apparently abandoned at some point during the case, we intimate no view on whether § 1981 would afford a jurisdictional base for a suit like this one. In any event it would be available here to Robert Parish alone, since it proscribes only racial discrimination. . Associated Students, Inc. v. N.C.A.A., 9 Cir. 1974, 493 F.2d 1251, 1254-1255; Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974) (unreported order); Howard University v. N.C.A.A., D.D.C.1973, 367 F.Supp. 926, 929, appeal pending, Nos. 74-1166—1169 (D.C.Cir.); Buckton v. N.C.A.A., D.Mass.1973, 366 F.Supp. 1152, 1156-1157; Curtis v." }, { "docid": "11660505", "title": "", "text": "likelihood of equal protection violation when the N.C.A.A. declared ineligible two Boston University (B.U.) hockey players. Those players were Canadian Nationals who had played Canadian Major Junior A hockey prior to their matriculation at B.U. Aside from surface similarities, however, the facts here are clearly distinguishable and not nearly so compelling as those presented by Buckton. As did the plaintiff here, the plaintiffs in Buckton played Major Junior A hockey. But they did so always in conjunction with their pursuit of a full-time secondary school education. As was more fully noted in Buckton, a Ca nadian athlete who wanted to go to school and simultaneously play organized hockey could only do so by joining one of the Canadian amateur teams, there being no significant inter-scholastic competition in Canada. Thus the compensation received by the Buckton plaintiffs from their team for room, board, books and travel was substantially equivalent, both in character and scope, to the aid permissibly awarded by American schools in the form of athletic scholarships. The only material distinction was that the source of the aid given the Buckton plaintiffs was the team, while their American counterparts received theirs from academic institutions. The American system was sanctioned by the same N.C.A.A. and E.C.A.C. regulations that outlawed the Canadian practice. The situation in the instant case is an entirely different one. The plaintiff here is an American, not a Canadian. His home town had an active hockey program and was called “Hockey Town U.S.A.” The plaintiff, therefore, did not have to play Canadian Major Junior A hockey in order to participate in an organized hockey program. It is unnecessary to determine if his decision to do so, standing alone, is fatal to his cause, because the record reflects he has even more serious problems which cast doubt on the likelihood of his prevailing. During the two year hiatus between his high school graduation and matriculation at Northeastern, plaintiff continued to play for Canadian and American “Amateur” teams and continued to receive the same financial aid from his team. Unlike the situation in Buckton, plaintiff’s play during those two years" }, { "docid": "11660503", "title": "", "text": "action, therefore, nothing has come to this court’s attention which would warrant abandonment of its conclusion set forth in Buckton. The substantive issues of plaintiff’s claim, however, differ markedly from those presented in Buckton. Unlike the situation in Buckton, there is no claim here that the challenged N.C.A. A. eligibility regulations discriminate against the plaintiff on the basis of national origin, nor does there appear to be any other basis for the court to evaluate these regulations against a standard of strict scrutiny. Accordingly, the plaintiff is entitled to have the N.C.A. A.’s eligibility regulations invalidated only if they bear no rational relationship to that organization’s legitimate objectives. See Parish v. N. C. A. A., 506 F.2d 1028 (5th Cir. 1975). The plaintiff was declared ineligible by Northeastern because he had allegedly violated the N.C.A.A.’s Principle of Amateurism which is embodied in Article Three of the Association’s Constitution. Article Three, Section 1 reads: Principle of Amateurism and Student Participation. An amateur student- athlete is one who engages in a particular sport for the educational, physical, mental and social benefits he derives therefrom, and to whom participation in that sport is an avocation. The Article then goes on to list a number of specific eligibility standards, certain of which the plaintiff has allegedly failed to meet. The plaintiff claims that the decision to classify him as ineligible on the basis of those regulations is without rational foundation. The facts presented thus far, however, do not support his contention. Prior to his matriculation at Northeastern, the plaintiff had played five seasons of hockey for various non-scholastic Canadian and American teams. During the first three of those seasons, he also attended high school either in this country or in Canada. For the remaining two seasons he played hockey but did not attend school. He received financial aid from his team during each of these five seasons. That plaintiff received aid from a hockey team during two seasons that he did not attend school makes Buckton a doubtful precedent for him to rely upon. In Buckton, this court held that there was a substantial" }, { "docid": "17832326", "title": "", "text": "96 S.Ct. 422, 46 L.Ed.2d 369, 44 U.S.L.W. 3330 (1975); Spark v. Catholic University of America, 167 U.S.App.D.C. 56, 510 F.2d 1277 (1975); Blouin v. Loyola University, 506 F.2d 20 (5th Cir. 1975); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973); Robinson v. Davis, 447 F.2d 753 (4th Cir. 1971), cert. denied, 405 U.S 979, 92 S.Ct. 1204, 31 L.Ed.2d 254 (1972); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971); Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968); Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa.1974); Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968); Guillory v. Administrators of Tulane University, 212 F.Supp. 674 (E.D.La.1962). But see Buckton v. National Collegiate Athletic Association, 366 F.Supp. 1152 (D.Mass.1973). For ourselves, we approach with some caution any labelling that might incidentally contribute to the erosion of the autonomy and diversity of private colleges and universities. See Bok, President’s Report, 1974-75, Harvard University. On this record we are satisfied that the district court did not err in finding insufficient evidence of state involvement. We also agree with the court below that nothing in the Constitution or the educational policy of Puerto Rico makes higher education at the University a public function. Higher education is not generally regarded as exclusively a function “traditionally associated with sovereignty”, see Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 353, 354 n.9, 955 S.Ct. at 455, 42 L.Ed.2d at 485; Greenya v. George Washington University, supra; Blackburn v. Fisk University, supra; Browns v. Mitchell, surpa; Powe v. Miles, supra; Grossner v. Trustee of Columbia University, supra. But see Belk v. Chancellor of Washington University, 336 F.Supp. 45 (E.D.Mo.1970). Indeed, private higher education had always occupied a distinctive niche in our society. However the Constitution of Puerto Rico is read with respect to higher education, we find nothing in it that remotely calls into question the traditional status of private colleges and universities. Affirmed. . Berrios, on whose briefs appellant Villalba is also proceeding, abandoned earlier-stated claims under 42 U.S.C. §§ 1981" }, { "docid": "11660502", "title": "", "text": "must be denied. This court has held in the past that the actions of the N.C.A.A., declaring student-athletes ineligible to participate in intercollegiate hockey, constituted state action sufficient to meet the requirements of 42 U.S.C. § 1983. Buckton v. N. C. A. A., 366 F.Supp. 1152, 1156-57 (D.Mass.1973). Since Buck-ton, two circuit courts and one district court, faced with the same issue, reached the identical result. See Parish v. N. C. A. A., 506 F.2d 1028 (5th Cir. 1975), citing Associated Students, Inc. v. N. C. A. A., 493 F.2d 1251, 1254-55 (9th Cir. 1974); Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974); Howard University v. N. C. A. A., 367 F.Supp. 926, 929 (D.D.C.1973). See also Curtis v. N. C. A. A., C-71 2088 ACW (N.D.Cal.1972). But see McDonald v. N. C. A. A., 370 F.Supp. 625 (C.D.Cal.1974). Recently, another district court has held that the actions of a private university constitute state action as well. Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473 (E.D.Pa.1974). With respect to the issue of state action, therefore, nothing has come to this court’s attention which would warrant abandonment of its conclusion set forth in Buckton. The substantive issues of plaintiff’s claim, however, differ markedly from those presented in Buckton. Unlike the situation in Buckton, there is no claim here that the challenged N.C.A. A. eligibility regulations discriminate against the plaintiff on the basis of national origin, nor does there appear to be any other basis for the court to evaluate these regulations against a standard of strict scrutiny. Accordingly, the plaintiff is entitled to have the N.C.A. A.’s eligibility regulations invalidated only if they bear no rational relationship to that organization’s legitimate objectives. See Parish v. N. C. A. A., 506 F.2d 1028 (5th Cir. 1975). The plaintiff was declared ineligible by Northeastern because he had allegedly violated the N.C.A.A.’s Principle of Amateurism which is embodied in Article Three of the Association’s Constitution. Article Three, Section 1 reads: Principle of Amateurism and Student Participation. An amateur student- athlete is one who engages in a particular sport for the educational, physical," }, { "docid": "11660504", "title": "", "text": "mental and social benefits he derives therefrom, and to whom participation in that sport is an avocation. The Article then goes on to list a number of specific eligibility standards, certain of which the plaintiff has allegedly failed to meet. The plaintiff claims that the decision to classify him as ineligible on the basis of those regulations is without rational foundation. The facts presented thus far, however, do not support his contention. Prior to his matriculation at Northeastern, the plaintiff had played five seasons of hockey for various non-scholastic Canadian and American teams. During the first three of those seasons, he also attended high school either in this country or in Canada. For the remaining two seasons he played hockey but did not attend school. He received financial aid from his team during each of these five seasons. That plaintiff received aid from a hockey team during two seasons that he did not attend school makes Buckton a doubtful precedent for him to rely upon. In Buckton, this court held that there was a substantial likelihood of equal protection violation when the N.C.A.A. declared ineligible two Boston University (B.U.) hockey players. Those players were Canadian Nationals who had played Canadian Major Junior A hockey prior to their matriculation at B.U. Aside from surface similarities, however, the facts here are clearly distinguishable and not nearly so compelling as those presented by Buckton. As did the plaintiff here, the plaintiffs in Buckton played Major Junior A hockey. But they did so always in conjunction with their pursuit of a full-time secondary school education. As was more fully noted in Buckton, a Ca nadian athlete who wanted to go to school and simultaneously play organized hockey could only do so by joining one of the Canadian amateur teams, there being no significant inter-scholastic competition in Canada. Thus the compensation received by the Buckton plaintiffs from their team for room, board, books and travel was substantially equivalent, both in character and scope, to the aid permissibly awarded by American schools in the form of athletic scholarships. The only material distinction was that the source" }, { "docid": "17832325", "title": "", "text": "50, to determine whether the private entity was so intertwined with the state as to be subject to the standards of lawful activity imposed upon public institutions. We need not repeat the evidence of record, found in the parties’ stipulations and exhibits and detailed more fully in the opinion below, nor the court’s analysis. The facts and circumstances fell well short of showing that either the University or the challenged disciplinary proceedings were so closely associated with the Commonwealth as to warrant judicial scrutiny under § 1983. As the district court indicated, this circuit has not previously ruled on a claim that actions of a private university constitute state action for purposes of § 1983. A number of such claims have been litigated elsewhere, however, and while each situation depends on its own facts, courts generally have been reluctant to find from factors of the sort relied upon by appellants that a private university is a state actor. Greenya v. George Washington University, 167 U.S.App.D.C. 379, 512 F.2d 556 (1975), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369, 44 U.S.L.W. 3330 (1975); Spark v. Catholic University of America, 167 U.S.App.D.C. 56, 510 F.2d 1277 (1975); Blouin v. Loyola University, 506 F.2d 20 (5th Cir. 1975); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973); Robinson v. Davis, 447 F.2d 753 (4th Cir. 1971), cert. denied, 405 U.S 979, 92 S.Ct. 1204, 31 L.Ed.2d 254 (1972); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971); Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968); Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa.1974); Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968); Guillory v. Administrators of Tulane University, 212 F.Supp. 674 (E.D.La.1962). But see Buckton v. National Collegiate Athletic Association, 366 F.Supp. 1152 (D.Mass.1973). For ourselves, we approach with some caution any labelling that might incidentally contribute to the erosion of the autonomy and diversity of private colleges and universities. See Bok, President’s Report, 1974-75, Harvard University. On this record we are satisfied that the district" }, { "docid": "8754309", "title": "", "text": "This action was initially brought in a state court against Duke and the NCAA. The plaintiff asked that each be enjoined from enforcing the Bylaw. He claimed a denial of due process and equal protection. The equal protection claim is based upon an allegation that, although the Bylaw was neutral on its face, it was designed to exclude aliens from competition in the NCAA affiliated institutions. The state court granted a temporary restraining order, but Duke and the NCAA promptly removed the case to the United States District Court for the Middle District of North Carolina. There the plaintiff requested preliminary injunctions, while Duke filed a cross claim against the NCAA seeking a preliminary injunction on due process grounds. II. Although the NCAA is not a public institution, most of the courts considering the matter have held that its actions are state actions subject to the limitations of the Fourteenth Amendment. E.g., Regents of the University of Minnesota v. NCAA, 560 F.2d 352 (8th Cir.1977); Howard University v. NCAA, 510 F.2d 213 (D.C.Cir.1975); Parish v. NCAA, 506 F.2d 1028 (5th Cir. 1975); Associated Students, Inc. v. NCAA, 493 F.2d 1251 (9th Cir.1974). But see McDonald v. NCAA, 370 F.Supp. 625 (C.D. Cal.1975). It was variously said that the NCAA performs a public function regulating intercollegiate athletics, see Parish v. NCAA, 506 F.2d 1032, that there was substantial interdependence between the NCAA and the state institutions that comprise about one-half of its membership, e.g., Howard University, 510 F.2d at 219, and that the state institutional members played a “substantial although admittedly not pervasive” role in NCAA funding and decision making. Parish, 506 F.2d 1032, see Howard University, 510 F.2d at 219. These earlier cases rested upon the notion that indirect involvement of state governments could convert what otherwise would be considered private conduct into state action. That notion has now been rejected by the Supreme Court, however, and its decisions require a different conclusion. Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). III." }, { "docid": "23655572", "title": "", "text": "787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267; Gibbs v. Titelman, 3 Cir. 1974, 502 F.2d 1107, 1110; Shirley v. State National Bank of Connecticut, 2 Cir. 1974, 493 F.2d 739, 741. Hut see Lavoie v. Bigwood, 1 Cir. 1972, 457 F.2d 7, 15 (“color of state law” requirement may demand greater state involvement than “state action”). Early in the proceedings appellants sought to establish jurisdiction under 42 U.S.C. § 1981, which of course extends to private action. Because this claim was apparently abandoned at some point during the case, we intimate no view on whether § 1981 would afford a jurisdictional base for a suit like this one. In any event it would be available here to Robert Parish alone, since it proscribes only racial discrimination. . Associated Students, Inc. v. N.C.A.A., 9 Cir. 1974, 493 F.2d 1251, 1254-1255; Smith v. Southern Methodist University, CA-3-74-895B (N.D.Tex.1974) (unreported order); Howard University v. N.C.A.A., D.D.C.1973, 367 F.Supp. 926, 929, appeal pending, Nos. 74-1166—1169 (D.C.Cir.); Buckton v. N.C.A.A., D.Mass.1973, 366 F.Supp. 1152, 1156-1157; Curtis v. N.C.A.A., C-71 2088 ACW (N.D.Cal.1972) (unreported opinion). The Seventh Circuit did not. reach the jurisdictional issue in Schubert v. N.C.A.A., supra. . In addition to the opinions cited by the district. court in this case, 361 F.Supp. at 1214, see Wright v. Arkansas Activities Ass’n, 8 Cir. 1974, 501 F.2d 25; Gilpin v. Kansas State High School Activities Ass’n, D.Kansas 1974, 377 F.Supp. 1233; Baltic Ind. School Dist. v. South Dakota High School Activities Ass’n, D.S.D.1973, 362 F.Supp. 780. . McDonald was decided before the Ninth Circuit issued its opinion in the Associated Students case, see note 7 supra, and is presumably overruled on the state action issue by that opinion. . See Parish v. N.C.A.A., supra, 361 F. Supp. at 1216-1219; Howard University v. N.C.A.A., supra, 367 F.Supp. at 928-929; Buckton v. N.C.A.A., supra, 366 F.Supp. at 1156-1157. In determining whether the NCAA’s activities constitute state action in the constitutional sense, it is of no significance that state-supported schools, as well as private ones, join the association voluntarily. On the other hand, because Centenary" } ]

[ { "docid": "1982358", "title": "", "text": "F.3d 743, 748 (7th Cir.1998) (“Although due process claims do not usually require exhaustion because the [BIA] cannot adjudicate constitutional issues, the requirement applies when the petitioner’s claim involves procedural errors correctable by the administrative tribunal.” (internal quotation and citation omitted)). That does not end our inquiry in this case, however, because it appears that Mr. Gonzalez had “no reasonable prospect [of obtaining] any relief’ by an appeal to the BIA because the BIA had clearly and repeatedly taken a position contrary to Mr. Gonzalez’s lone statutory contention. Health Equity Res. Urbana, 927 F.2d at 965. Mr. Gonzalez advanced that he was not within § 1226(c)’s mandatory detention ambit because his Illinois probationary disposition did not count as a “conviction” for immigration purposes. However, the BIA held in In re Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), 1999 BIA LEXIS 7, that “conviction” for immigration purposes is not defined by state law, but by 8 U.S.C. § 1101(a)(48)(A), under which Mr. Gonzalez’s Illinois disposition counts as a “conviction.” The BIA strongly reaffirmed that position in In re Salazar-Regino, 23 I. & N. Dec. 223 (BIA Feb. 14, 2002), 2002 BIA LEXIS 2, approximately eight months before the IJ held on October 17, 2002, that Mr. Gonzalez fell within § 1226(c)’s ambit because he was “convicted” for immigration purposes. As counsel for the Government noted at oral argument, the BIA’s decision in Salazar-Regi- no made clear- that the BIA deemed his statutory contention to be without merit. Furthermore, there is nothing to indicate the BIA would change its position. Therefore, appealing to the BIA would have been “futile” because the BIA had “predetermined” the statutory issue, Iddir, 301 F.3d at 498, and Mr. Gonzalez had “no reasonable prospect” of obtaining relief, Health Equity Res. Urbana, 927 F.2d at 965. See Atlantic Richfield Co. v. United States Dep’t of Energy, 769 F.2d 771, 782 (D.C.Cir.1984) (“[Ejxhaustion is not required where, as here, it is highly unlikely that the [agency] would change its position.” (internal quotation and citation omitted)); 3 Charles H. Koch, Jr., Administrative Law and Practice § 13.22[9], at" } ]

[ { "docid": "12989786", "title": "", "text": "S.Ct. 1433, 10 L.Ed.2d 622, noting that one of the purposes underlying the Civil Rights Act was “to provide a remedy in the federal courts supplementary to any remedy any State might have,” id., at 672, 83 S.Ct. [1433] at 1435 [10 L.Ed.2d at 625], we held that “relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy,” id., at 671, 83 S.Ct. [1433] at 1435 [10 L.Ed.2d at 625]. See Monroe v. Pape, 365 U.S. 167, 180-183, 81 S.Ct. 473, 5 L.Ed.2d 492, [501]. 389 U.S. 416 at 417, 88 S.Ct. 526 at 527, 19 L.Ed.2d 647, at 648. In Houghton v. Shafer, 1968, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319, a state prisoner alleged that prison authorities had violated § 1983 by depriving him of legal materials which he was using to prepare an appeal. The district court dismissed the complaint on the ground that state administrative remedies had not been exhausted. The Court of Appeals for the Third Circuit affirmed. The Supreme Court reversed. The Court noted that resort to these remedies would be to demand a futile act, because the prison rules were strictly enforced throughout the entire Pennsylvania correctional system. But the Court did not rest its holding on that ground. The Court said: “In any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, McNeese v. Board of Education, and Damico v. California.” (citations omitted). 392 U.S. at 640, 88 S.Ct. at 2120. McNeese, Damico, and Houghton are strong authority for the appellant’s position, for in these cases the Court applied the Monroe holding to state administrative remedies. There are good reasons in favor of requiring exhaustion of ad ministrative remedies which are not applicable to exhaustion of state judicial remedies. Here, Moreno did all he could do administratively. He knew nothing about grievance procedures. He requested and received a civil service hearing. After his dismissal by the City Manager, he was forced to choose between one court and another court" }, { "docid": "23693141", "title": "", "text": "of the challenged regulation, which applies to all class members. Thus, defendants have acted on “grounds generally applicable to the class.” And final injunctive and declaratory relief is sought. In Worrell v. Sterrett, CCH Pov.L.R. ¶ 10,575 (N.D.Ind.1969), final declaratory and injunctive relief was granted upon a complaint markedly similar to count 1 of the instant complaint. And cf. James v. Goldberg, 302 F.Supp. 478 (S.D.N.Y.1969); Van Gemert v. Boeing Company, 259 F.Supp. 125 (S.D.N.Y.1966). Defendants’ argument that the complaint is predominantly one for money damages, and therefore not maintainable under this subsection, is also without merit. Class actions have been upheld under Rule 23(b) (2) in previous welfare cases when retroactive payments were sought. See Doe v. Shapiro, 302 F.Supp. 761 (D.Conn.1969) app. dism. 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677; Solman v. Shapiro, 300 F.Supp. 409 (D.Conn.1969) aff’d. 396 U.S. 5, 90 S.Ct. 25, 24 L.Ed.2d 5. In this case, as in those, the primary relief sought by the class is an injunction against state practices which allegedly deny federal rights, rather than the recovery of past benefits. We conclude that plaintiffs may maintain each count of this complaint as a class action under Rule 23(b) (2) of the Federal Rules of Civil Procedure. Motions to Dismiss Count 1. Defendant Swank, the Director of the Illinois Department of Public Aid, has filed a motion for judgment on the pleadings. His first contention is that plaintiffs, by failing to pursue the state administrative appeal allowed by 23 Ill.Rev.Stat. § 11-8, have failed to exhaust their state remedies and are precluded from suing under 42 U.S.C. § 1983. However, we think that this argument is foreclosed by King v. Smith, 392 U.S. 309, 312, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118 (1968), holding that a plaintiff suing under § 1983 need not exhaust administrative remedies “where the constitutional challenge is sufficiently substantial, as here, to require the convening of a three-judge court.” See also Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d" }, { "docid": "5527349", "title": "", "text": "biased (Gibson v. Berryhill, 411 U.S. 564, 575 n. 14, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 206, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755, 768-69 (1972); Amos Treat & Co. v. SEC, supra, 306 F.2d at 266-67; or where exhaustion would be futile. Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 703 (1974); Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 825 (2d Cir. 1967); Western International Hotels v. Tahoe Regional Planning Agency, 387 F.Supp. 429, 433-34 (D.Nev.1975). The private defendants suggest, however, that the apparent futility of the remedy before the FCC is belied by the availability of the court of appeal review procedure. The suggestion of the private defendants is twofold: first, that the court of appeals could force the FCC to give the plaintiffs’ claim appropriate consideration; second, that even if remedies with the FCC were .inadequate, the court of appeals would afford adequate consideration to the plaintiffs’ claims. The parties’ first point overlooks the underlying cause of the remedy’s inadequacy. The inadequacy results not from any venality on the part of the Commission but rather because the Commission is understandably biased. Vigorous advocates inevitably are. The court of appeals cannot be expected to transform admittedly interested parties into impartial observers. The parties’ second point puts the cart before the horse. Wherever this lawsuit should start, and whatever its outcome in the initial forum, it can proceed at least to the court of appeals. Compare 28 U.S.C. § 2342 with 28 U.S.C. § 1291. The question is what kind of record the court of appeals will review. For the reasons stated previously, a record with findings of fact entered by the FCC would be fatally defective. The effectiveness of any remedy in the court of appeals presupposes that material issues of fact first be presented to an impartial trier of fact. Finally, even if" }, { "docid": "17577021", "title": "", "text": "filing a habeas corpus petition to challenge “conditions of his confinement.” Exhaustion of administrative remedies is required prior to the issuance of mandamus relief. See Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972). This is consistent with the dictates that mandamus will not issue if an alternative fully adequate remedy exists. In addition, where an administrative decision is involved, exhaustion is more applicable to allow completion of administrative treatment of the particular problem. See generally McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); K. Davis, Administrative Law Treatise §§ 20.01 et seq. (3d ed. 1958, 1970 Supp.) When prison administration is involved and fair procedures are available, a prisoner can often obtain expeditious review and relief without the necessity of seeking a remedy through the courts. Willis v. Ciccone, 506 F.2d 1011, 1014 (8th Cir. 1974). This is not a case, however, where a party seeking judicial relief by mandamus bypassed an available administrative procedure, City of Highland Park, supra, or truncated the procedure without pursuing the process to its end, Beale, supra. True, Holmes did not follow the administrative grievance procedures prescribed by the Bureau of Prisons’ policy statement in order to make his demands known to the Bureau. A denial of this demand, however, had already been rendered, not by the first or second party in the review procedure, but by the office which would be the ultimate decision maker in the review procedure. To compel Holmes to resort to an administrative procedure that terminates with an appeal to a party in the highest level who has already rejected his request “would be to demand a futile act.” Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1519 (1968); U.S. ex rel. Marrero v. Warden, 483 F.2d 656 (3d Cir. 1973). The Government also argues that mandamus relief is inappropriate because Holmes is attacking his “conditions of confinement” and such an attack may properly be made by habeas corpus. We are not convinced by the Government’s reliance on Preisser v. Rodriquez, 411 U.S. 475, 93, S.Ct. 1827," }, { "docid": "5017320", "title": "", "text": "Moreover, like the situation in Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 2120, 20 L.Ed.2d 1319, the Attorney General not only instigated the action against plaintiff, but also is both prosecutor and final arbiter. Even if the IJ and the Board of Immigration Appeals (“BIA”) were to find plaintiffs deportation improper, the INA could appeal the adverse rulings to the Attorney General, herself. (Def.’s Reply in Opp. to Pl.’s Mot. for Inj. Relief at 14 n. 4 (citing 8 C.F.R. § 3.1(h)(l)(iii)).) Thus, the administrative process culminates with the Attorney General, and, as was the case in Houghton, the Attorney General has already made her position abundantly clear to this court that plaintiff is deportable and should be deported. Under the circumstances, then, exhaustion would be wholly meaningless. Having concluded that none of the purposes underlying the exhaustion requirement would be served in the case at bar, this court must examine the extent of the irreparable harm plaintiff would suffer if required to exhaust the administrative remedies available to him. As the facts of this case make clear, plaintiffs injury cannot be overstated. First, plaintiff remains incarcerated solely under the authority of an unconstitutional statute. See Jolly v. Coughlin, 76 F.3d at 482 (2d Cir.1996), (concluding that violation of constitutional rights, specifically unconstitutional confinement, raises presumption of irreparable harm). Moreover, the conditions of plaintiffs confinement are particularly onerous. At the time of the initial hearing before this court, plaintiff was being held at FCI Fairton, over 160 miles away from his family and counsel, in 24-hour lock-up. (Pl.’s Mem. of Law in Supp. of Mot. for Injunctive Relief at 10-11.) He was allowed one ten-minute telephone call per week. Id. He was not allowed a pen in his cell. Id. He was being given no exercise and no access to radio or television. Id. Since the hearing, plaintiff has been transferred to the Union County jail, where the conditions allegedly remain onerous, though somewhat less so. (Pl.’s 2/5/96 Letter Br. at 2.) Understandably, plaintiffs confinement, which became unconstitutional after the issuance of Magistrate Judge Chesler’s December 22," }, { "docid": "23669303", "title": "", "text": "memoranda and letters to the Commissioner revealing his actions with respect to Sostre (Pl. Exh. 29, 29A-29F). There had been an inspector from the Commissioner’s office at the prison in September 1968 who made a special memorandum to the file on conditions in punitive segregation at Green Haven. (Def. Exh. BB; T. 1163-1164). There was also a general report in September 1968 regarding conditions at Green Haven to the Commissioner (Def. Exh. AA) which also reported on conditions in segregation. The Commissioner took no action with regard to Sostre or the conditions in punitive segregation until after Sostre filed his pro se complaint on October 15, 1968. The Commissioner then sent to the Warden a letter which had been written to him by a private citizen on behalf of Sostre in which he requested the Warden to “give [him] complete information so that [he] may be in a position to more adequately answer [the] inquiry.” (Pl.Exh. 30). There is no dispute that the Commissioner was fully advised of the treatment afforded Sostre and of Sostre’s condition in segregation but never took any action. (T. 700). The Second Circuit said in Eisen v. Eastman, supra, 421 F.2d at 569, that exhaustion of state administrative remedies is not required in actions under Section 1983 where the administrative remedy is inadequate or where it is certainly or probably futile, citing Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In this case, as in Houghton, the defendants, including the Commissioner, take the position that the rules were validly and correctly applied to petitioner. The only recourse available to plaintiff was to write a letter to the Commissioner, the very person to whom the Warden had already reported and who takes this po sition. In a case such as this, where the person with the power to act has already been informed of the facts, it would be “to demand a futile act” to require an aggrieved person to first appeal to such person before resorting to a federal court for relief. Houghton at 640, 88 S.Ct. 2119. VII. Injunctive" }, { "docid": "12409434", "title": "", "text": "Act, which is to ensure that federal contractors, such as Volvo GM, are not engaged in impermissible discrimination. Even if the rationale of Liberty Mutual is applicable here, an exhaustion requirement which allows an agency, which is familiar with the Procurement Act and Executive Order 11246, to handle any such alleged discrimination demonstrates a sufficient nexus to the Procurement Act’s goals. . We also note that Volvo GM’s \"constitutional claim\" appears to be nothing more than clever pleading of its APA claim so as to avoid the exhaustion requirement. The substance of the APA claim and the constitutional claim are identical, i.e. 1) the seven-year delay, which Volvo GM terms \"extraordinary,” by the OFCCP in bringing the enforcement action violated 5 U.S.C. § 555(b) in that the delay was \"unreasonable”, and 2) that same \"extraordinary” seven-year delay violated its due process rights under the Fifth Amendment. Thus, Volvo GM should not be able to escape the exhaustion requirements of the APA merely by realleging and repackaging its APA claim, as a constitutional claim. . In response to Volvo GM's motion for summary judgment, the OFCCP argued that the rationale of American Airlines fully applies to cases arising under Executive Order 11246. . For case support, Volvo GM also relies upon Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), and Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C.Cir.1970). In Houghton, the Court held that a prisoner was not required to exhaust his administrative remedies before challenging a rule that deprived him of legal books and materials because the ultimate decision maker, the Attorney General of Pennsylvania, had already made his position clear. Houghton, 392 U.S. at 640, 88 S.Ct. at 2120. (\"In light of this [Attorney General's decision] it seems likely that to require pelitioner to appeal ..., would be deemed a futile act.”) In Cinderella, the court concluded that disqualification of the administrative decisionmaker was warranted where the decision maker had prejudged the issue of the case. Cinderella, 425 F.2d at 590-91. Unlike in Houghton and Cinderella, the final decisionmaker has" }, { "docid": "11478938", "title": "", "text": "1827, 36 L.Ed.2d 439 (1973); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Wilwording v. Swen-son, 404 U.S. 249, 251-52, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). While the exhaustion discussion in these cases can be interpreted as ambiguous or as unnecessary dicta, see, e. g., Cordova v. Reed, 521 F.2d 621, 624 (2d Cir. 1975); Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), this court has agreed with the view of the majority of courts of appeals that administrative remedies, irrespective of their adequacy, need not be exhausted by a plaintiff seeking a federal remedy under section 1983. Hochman v. Board of Education, 534 F.2d 1094 (3d Cir. 1976). In that case, a nontenured teacher brought an action against the school board alleging that he was dismissed in retaliation for his exercise of first amendment rights. The court followed what it called the “unqualified expression” of the rule by the Supreme Court, and emphasized: When appropriate federal jurisdiction is invoked alleging violation of First Amendment rights, as Hochman does here, we may not insist that he first seek his remedies elsewhere no matter how adequate those remedies may be. Id. at 1097. While courts should be cautious when delving into the internal operations of a prison, see Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Carpenter v. State of South Dakota, 536 F.2d 759, 763 (8th Cir. 1976); Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970), the Supreme Court has not differentiated actions by prisoners under section 1983 from those of other plaintiffs, and has not required exhaustion of state administrative remedies. In Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), the Court in a per curiam opinion reversed the holding of" }, { "docid": "22091907", "title": "", "text": "had done. The answer, we think, can be found in the later statement in King v. Smith, citing Damico, that a plaintiff in an action under the Civil Rights Act “is not required to exhaust administrative remedies, where the constitutional challenge is sufficiently substantial, as here, to require the convening of a three-judge court.” 392 U.S. at 312 n. 4, 88 S.Ct. at 2131. Insofar as Damico’s complaint attacked the constitutionality of the California law postponing AFDC aid for three months after desertion by or separation from the father unless a suit for divorce had been filed, it is hard to see what an administrative hearing could have accomplished; the California relief agency could not declare the state statute unconstitutional. While King v. Smith involved a state regulation rather than a statute, it was also exceedingly unlikely that an administrative hearing would produce a change. Finally in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), the complaint concerned prison rules that the attorney general of the state submitted had been “validly and correctly applied to petitioner.” Under such circumstances to compel resort to an administrative remedy culminating in an appeal to that very officer “would be to demand a futile act.” 392 U.S. at 640, 88 S.Ct. at 2120. Despite the breadth of some of the language, particularly in the Damico per curiam, we thus read these decisions as simply condemning a wooden application of the exhaustion doctrine in cases under the Civil Rights Act. Exhaustion of state administrative remedies is not required where the administrative remedy is inadequate, as in McNeese, or where it is certainly or probably futile, as in Damico, Smith and Houghton. A quite different situation would be presented, for example, when a complaint alleged that a subordinate state officer had violated the plaintiff’s constitutional rights by acting because of bias or other inadmissible reasons, by distorting or ignoring the facts, or by failing to apply a constitutional state standard, and the state has provided for a speedy appeal to a higher administrative officer, as New York City has done here." }, { "docid": "22091906", "title": "", "text": "held only that .there was no administrative remedy by which plaintiffs could have any assurance of getting the relief they wanted- — • an end to segregation — even if they were clearly entitled to it. The three other cases are Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); King v. Smith, supra, 392 U.S. at 312, n. 4, 88 S.Ct. 2128; and Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). Damico was a per curiam opinion rendered on a jurisdictional statement and a motion to dismiss. The Court quoted McNeese as holding, 373 U.S. at 671, 83 S.Ct. at 1435, that “relief under the Civil Rights Act may not be defeated because' relief was not first sought under state law which provided [an administrative] remedy” (brackets in original), and then cited Monroe v. Pape, 365 U.S. 167, 180-183, 81 S.Ct. 473. But the portion of the McNeese opinion that was quoted dealt with a state judicial, not administrative remedy, as Monroe v. Pape also had done. The answer, we think, can be found in the later statement in King v. Smith, citing Damico, that a plaintiff in an action under the Civil Rights Act “is not required to exhaust administrative remedies, where the constitutional challenge is sufficiently substantial, as here, to require the convening of a three-judge court.” 392 U.S. at 312 n. 4, 88 S.Ct. at 2131. Insofar as Damico’s complaint attacked the constitutionality of the California law postponing AFDC aid for three months after desertion by or separation from the father unless a suit for divorce had been filed, it is hard to see what an administrative hearing could have accomplished; the California relief agency could not declare the state statute unconstitutional. While King v. Smith involved a state regulation rather than a statute, it was also exceedingly unlikely that an administrative hearing would produce a change. Finally in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), the complaint concerned prison rules that the attorney general of the state submitted had been" }, { "docid": "5017319", "title": "", "text": "policy ground are not reviewable because Congress has committed determinations based on that ground to the Executive’s unfettered discretion” (Def.’s Reply in Opp. to Pl.’s Mot. for Inj.Relief at 29); “the question whether or not the alien is deportable is answered we believe by the [Secretary’s October 2, 1995] letter” (Transcript of 1/18/96 at 27-28); “Massieu cannot obtain discovery on the Secretary’s thought process.... [T]he letter can be examined only to determine whether it expresses a facially legitimate and bona fide reason for the Secretary’s determination, and the court’s [sic] cannot look behind it” (Def.’s Supp.Mem. at 33-36); “[discovery may not be had of the Secretary’s thought processes” (Def.’s Reply Mem. at 41). Stated another way, the government’s position is that because the Secretary’s determination of deportability is based on facially legitimate and statutorily authorized grounds, i.e., serious adverse foreign policy consequences, that determination cannot be challenged or reviewed. As in Diaz, then, the only issue that would be before the IJ has, by the government’s own repeated representations to this court, been conclusively pre-determined. Moreover, like the situation in Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 2120, 20 L.Ed.2d 1319, the Attorney General not only instigated the action against plaintiff, but also is both prosecutor and final arbiter. Even if the IJ and the Board of Immigration Appeals (“BIA”) were to find plaintiffs deportation improper, the INA could appeal the adverse rulings to the Attorney General, herself. (Def.’s Reply in Opp. to Pl.’s Mot. for Inj. Relief at 14 n. 4 (citing 8 C.F.R. § 3.1(h)(l)(iii)).) Thus, the administrative process culminates with the Attorney General, and, as was the case in Houghton, the Attorney General has already made her position abundantly clear to this court that plaintiff is deportable and should be deported. Under the circumstances, then, exhaustion would be wholly meaningless. Having concluded that none of the purposes underlying the exhaustion requirement would be served in the case at bar, this court must examine the extent of the irreparable harm plaintiff would suffer if required to exhaust the administrative remedies available to him. As the" }, { "docid": "905781", "title": "", "text": "contend that Ms. Parker’s complaint is not “ripe for adjudication” because Ms. Parker has not appealed the adverse decision of the local school board to the state board of education. Defendants’ argument, however, is far too simplistic and is an improper application of the holding in Stevenson. In discussing “finality,” the Stevenson court referred to Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969). In Whitner, a teacher dismissal case, the district court had held that plaintiff’s civil rights complaint failed to state a claim under 42 U.S.C. § 1983 because she had not exhausted her available state administrative remedies since she did not apply for a hearing to appeal her dismissal. In discussing the need for exhaustion of available state administrative remedies, the Whitner court distinguished between a pre-discharge administrative hearing and a post-discharge administrative hearing: “If the State administrative remedy here in question were designed to provide a means of obtaining relief from, or compensation for, a deprivation of civil rights which had already occurred, Mrs. Whitner would not have been required to exhaust it before instituting this civil rights action. See McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, followed in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed. 2d 1319 and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. “But the administrative remedy available to Mrs. Whitner was not designed to be remedial in this sense. Instead, it provided a means of forestalling a threatened future deprivation of civil rights. . . . Had she taken advantage of the opportunity afforded her to apply for a hearing before the ‘Senate Personnel’ Committee or the Board of Trustees, she might have persuaded College authorities not to discharge her. In that event she would have had nothing to complain about in either a state or federal court.” 410 F.2d at 28. The above-noted distinction between a pre-discharge administrative hearing and post-discharge administrative hearing is important with respect to the issue of “finality” because it makes clear that where the discharge has already occurred and further" }, { "docid": "23669304", "title": "", "text": "condition in segregation but never took any action. (T. 700). The Second Circuit said in Eisen v. Eastman, supra, 421 F.2d at 569, that exhaustion of state administrative remedies is not required in actions under Section 1983 where the administrative remedy is inadequate or where it is certainly or probably futile, citing Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In this case, as in Houghton, the defendants, including the Commissioner, take the position that the rules were validly and correctly applied to petitioner. The only recourse available to plaintiff was to write a letter to the Commissioner, the very person to whom the Warden had already reported and who takes this po sition. In a case such as this, where the person with the power to act has already been informed of the facts, it would be “to demand a futile act” to require an aggrieved person to first appeal to such person before resorting to a federal court for relief. Houghton at 640, 88 S.Ct. 2119. VII. Injunctive Relief The cases in which injunctions have been issued against state officials for violating Fourteenth Amendment rights in the last two decades are legion. Such injunctions issue, as a matter of right, where a violation of constitutional rights has been proved. This court has no discretion to deny injunctive relief to a person who clearly establishes, after a trial on the merits, that he is being denied his constitutional rights. Cf. Henry v. Greenville Airport Commission, et al., 284 F.2d 631 (4th Cir. 1960). In addition, the court's decree, where warranted, may provide for the retention of jurisdiction to insure that the injunctive order is carried out in an orderly fashion, Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Clemons v. Board of Education of Hillsboro, Ohio, 228 F.2d 853, 859-860 (6th Cir.), cert. den., 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956), or to allow for the amendment of state rules to conform with the decree, Sostre v. McGinnis, supra, 334 F.2d at" }, { "docid": "8532280", "title": "", "text": "Norton, 343 F.Supp. 956 (D.Conn.1972): Even if the interpolation of the word “administrative” was warranted, it could at most refer to the type of administrative remedy rejected in the latter portion of the McNeese opinion —namely, a remedy which is either beyond the power of the administrator or which cannot provide adequate protection to the right allegedly impaired. [Id. at 959]. The Court then took the word “administrative” out of the brackets in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In a brief and unenlightening per curiam opinion the Court held that exhaustion of only administrative remedies would not be required of a § 1983 prisoner-plaintiff where the state Attorney General, the officer to whom ultimate administrative appeal was to be taken, had already indicated his prejudgment of the case, thereby making resort to the administrative remedy an exercise in futility. But the per curiam opinion then added that, in any event under the authority of Monroe v. Pape, resort to these remedies is unnecessary. Id. at 640, 88 S.Ct. 2119. Then in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), the Court stated: . State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs. Houghton v. Shafer, [cite omitted]. There an inmate’s challenge to the confiscation of his legal materials without first seeking administrative redress was sustained. Although the probable futility of such administrative appeals was noted, we held that in “any event, resort to these remedies is unnecessary.” [citations omitted]. Id. at 251-252, 92 S.Ct. at 409. This summary treatment of the difficult question of administrative exhaustion by the Court in § 1983 suits led to the writing of eight separate opinions by the United States Court of Appeals for the Second Circuit in Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972). This case involved a prisoner suit under § 1983 against the prison officials for loss of good behavior time credit. Under the laws of New York a prisoner serving an indeterminate sentence may elect to participate in a" }, { "docid": "21912588", "title": "", "text": "any existing procedural requirements that must be complied with, as well as those current substantive criteria which will govern Board decisions. Additionally, there do not appear to be adequate countervailing governmental interests in nonpublication, and any financial or other burden that publication would impose upon the Board seems minimal. Plaintiff’s final claim appears to be that his due process rights were infringed by the failure of the Board to hold hearings throughout Massachusetts. He cites no direct support for this novel proposition, nor has this court found any. In our opinion the Board hearings presently provided in Boston are adequate and entirely consistent with procedural due process. As to this contention, the complaint fails to state a cause of action. The judgment of the district court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. . On appeal, defendants for the first time assert that since Raper had a substantial criminal record, and at the time of this 1972 application was on parole in Vermont and on probation in Massachusetts for separate offenses, the reason for the most recent denial of his application was his criminal background. Although this may have motivated the Registrar to conclude that issuance of a license did not “appear advisable,” the record does not reveal any evidence of this. . The named defendants were the Registrar of Motor Yehicles, the Attorney General and the Commissioner of Insurance, or their nominees, as members of the Board of Appeal. In addition, the Registrar was named in his official capacity. . Defendants urge alternatively, that the complaint should have been dismissed for plaintiff’s failure to exhaust available state administrative remedies. In the first place, we think the available administrative procedures would not have responded to plaintiff’s demand for procedural due process. Moreover, a series of recent Supreme Court decisions, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1971) (per curiam) ; Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L.E.d.2d 418 (1971) (per curiam) ; Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d" }, { "docid": "4248657", "title": "", "text": "MANSFIELD, District Judge. In this suit brought under the federal Civil Rights Law, 42 U.S.C. § 1983, plaintiffs seek relief for a class consisting of all the inmates now confined in the Manhattan House of Detention for Men, commonly known as “the Tombs.” Plaintiffs allege that the conditions under which they are presently confined constitute cruel and unusual punishment in violation of the Eighth Amendment, that the practice of opening and inspecting inmates’ incoming mail is an infringement on their constitutional right to communicate freely with their attorneys, and that the absence of readily-aceessible rules and regulations governing the conduct of inmates and correction officers in the Tombs deprives them of due process of law under the Fourteenth Amendment. Plaintiffs moved earlier for a determination that the action was maintainable as a class action. Defendants did not oppose that motion, and on October 26, 1970, Judge. McLean found that the action was maintainable as a class action for all the inmates of the Tombs. Plaintiffs now seek preliminary injunctive relief under Rule 65, F.R.Civ.P., pending final hearing and determination of the action. Defendants, those repre sented by the New York Corporation Counsel, have moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, Rule 12(b) (1) and (6), F.R.C.P. Our jurisdiction over § 1983 claims asserted by state prisoners is clear, Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970). We deferred decision upon the motion for a preliminary injunction in light of defendants’ representations that the conditions complained of were temporary, due to events beyond defendants’ immediate control, and would be remedied with all due speed. Having examined the facts of the ease as they appear from the affidavits, including supplemental affidavits submitted since plaintiffs’ motion was initially made, and submitted upon defendants’ more recent motion to dismiss, plaintiffs’ motion for a" }, { "docid": "905782", "title": "", "text": "exhaust it before instituting this civil rights action. See McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, followed in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed. 2d 1319 and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. “But the administrative remedy available to Mrs. Whitner was not designed to be remedial in this sense. Instead, it provided a means of forestalling a threatened future deprivation of civil rights. . . . Had she taken advantage of the opportunity afforded her to apply for a hearing before the ‘Senate Personnel’ Committee or the Board of Trustees, she might have persuaded College authorities not to discharge her. In that event she would have had nothing to complain about in either a state or federal court.” 410 F.2d at 28. The above-noted distinction between a pre-discharge administrative hearing and post-discharge administrative hearing is important with respect to the issue of “finality” because it makes clear that where the discharge has already occurred and further administrative proceedings would merely be remedial, an exhaustion of such administrative remedies is not required prior to the filing of a civil rights complaint. Under the Whitner rationale, a teacher dismissal civil rights complainant should be required to exhaust further available state administrative remedies only if those remedies would forestall a threatened future deprivation of civil rights, but exhaustion will not be required if the available state administrative remedies are merely remedial in nature and the deprivation of civil rights has already occurred. In the instant action, since plaintiff had been discharged by the Atlanta Board of Education, further administrative appeals would have been post-discharge hearings and therefore not required. Accordingly, plaintiff’s claim in the instant action is “ripe for adjudication” as required by Stevenson, supra, and this Court therefore has jurisdiction to consider it. Moving now to the merits of plaintiff’s claim, the Court finds that prior to her dismissal plaintiff was a tenured teacher employed by the Atlanta Public School System. As a tenured teacher she could be discharged for cause but the" }, { "docid": "5321854", "title": "", "text": "at 526 (brackets in original). The portion of the McNeese opinion that the Court quoted, however, dealt with a state judicial, not administrative remedy. Moreover, we do not read this statement as establishing a broad rule, especially in light of the context. The administrative remedy available in Damico would not have been a likely source for relief because the state agency could not declare the challenged law unconstitutional. The futility exception to the exhaustion requirement would appear to have been applicable in this context. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), follows similar reasoning. In that case, prison authorities had confiscated the petitioner’s legal materials because they were found in the possession of another inmate. The petitioner’s efforts to obtain the confiscated materials were unsuccessful so he filed a § 1983 suit. The district court dismissed his complaint on the sole ground that he had not alleged exhaustion of state administrative remedies. The Supreme Court noted that he did seek relief from the Deputy Superintendent of his prison, but did not appeal to the Deputy Commissioner of Correction, to the Commissioner, or to the Attorney General. Because the Attorney General had submitted to the Court that the prison rules were validly and correctly applied to the petitioner, the Court recognized that requiring an administrative appeal to that same officer “would be to demand a futile act.” Id. at 640, 88 S.Ct. at 2120. The Court added that “[i]n any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, . . . McNeese v. Board of Education, . . . and Damico v. California . .” Id. (page citations omitted). We read these cases, consistently with Houghton, as holding that the requirement of exhaustion of administrative remedies has no applicability where those remedies would be inadequate or where their exhaustion would certainly or probably be futile. See Eisen v. Eastman, 421 F.2d at 569. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), does not establish a broader rule. In that case, the court" }, { "docid": "5321853", "title": "", "text": "an end to segregation — even if they were clearly entitled to it.” Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). Thus McNeese may be explained as simply following the well-settled doctrine that the courts will not require a futile act, i. e., here that resort need not be had to the administrative remedies which are inadequate, either facially or as applied. The futility exception to the exhaustion requirement also explains Damico v. California, 389 U.S. 416, 88 S.Ct. 526,19 L.Ed.2d 647 (1967). The plaintiffs in that case filed a § 1983 suit challenging the constitutionality of the state welfare laws. A three-judge district court dismissed for failure to exhaust adequate administrative remedies, and the Supreme Court reversed in a short per curiam opinion. The Court quoted McNeese as holding that “relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy.” 389 U.S. at 417, 88 S.Ct. at 526 (brackets in original). The portion of the McNeese opinion that the Court quoted, however, dealt with a state judicial, not administrative remedy. Moreover, we do not read this statement as establishing a broad rule, especially in light of the context. The administrative remedy available in Damico would not have been a likely source for relief because the state agency could not declare the challenged law unconstitutional. The futility exception to the exhaustion requirement would appear to have been applicable in this context. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), follows similar reasoning. In that case, prison authorities had confiscated the petitioner’s legal materials because they were found in the possession of another inmate. The petitioner’s efforts to obtain the confiscated materials were unsuccessful so he filed a § 1983 suit. The district court dismissed his complaint on the sole ground that he had not alleged exhaustion of state administrative remedies. The Supreme Court noted that he did seek relief from the Deputy Superintendent of his prison, but" }, { "docid": "8532279", "title": "", "text": "not required because of its inadequacy under the circumstances. Significantly, the Court pointed out that the pertinent administrative official “has no power to order corrective action.” Id. at 675, 83 S.Ct. at 1437. The only method of enforcement at his disposal was through the state courts. Four years later, in Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), in a brief per curiam opinion, the Court refused to deny the plaintiffs their right to bring action in federal court because they failed to exhaust a state administrative remedy. In basing its opinion on both Monroe and McNeese, the Court said of the latter, “we held that ‘relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy,’ id., 373 U.S. at 671, 83 S.Ct. at 1435.” (brackets original). The page reference cited a portion of the decision in which the Court rejected the requirement of exhausting state court remedies. As Judge Newman pointed out in Kochie v. Norton, 343 F.Supp. 956 (D.Conn.1972): Even if the interpolation of the word “administrative” was warranted, it could at most refer to the type of administrative remedy rejected in the latter portion of the McNeese opinion —namely, a remedy which is either beyond the power of the administrator or which cannot provide adequate protection to the right allegedly impaired. [Id. at 959]. The Court then took the word “administrative” out of the brackets in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In a brief and unenlightening per curiam opinion the Court held that exhaustion of only administrative remedies would not be required of a § 1983 prisoner-plaintiff where the state Attorney General, the officer to whom ultimate administrative appeal was to be taken, had already indicated his prejudgment of the case, thereby making resort to the administrative remedy an exercise in futility. But the per curiam opinion then added that, in any event under the authority of Monroe v. Pape, resort to these remedies is unnecessary. Id. at 640, 88" } ]

[ { "docid": "19938672", "title": "", "text": "balance. Easter House, 910 F.2d at 1404. In distinguishing Zinermon from cases where Par-ratt would apply, we explained that the dispositive factor in determining whether Parratt will indeed apply in a given situation is still whether the state actor’s conduct is “random and unauthorized” or, as the Court has rephrased it, whether the state actor’s conduct is “predictable and authorized.” Id. at 1400. Looking at the specific facts of Easter House, where the plaintiff was claiming that the defendants had conspired to deprive it of an operating license, we found that predeprivation procedures were not necessitated because the defendants’ actions were “patently inconsistent with Illinois law and constituted an outright departure from the authority which the [state official] was granted under governing statutes and regulations.” Id. at 1401. We focused on whether the discretion of the decision makers was “uncircumscribed or otherwise unregulated.” Id. We later explained that “Illinois adopted a procedure which provided adequate due process protection; it contained no loopholes which would allow a deprivation to occur without due process unless the state employees acted in an unforeseen way.” Id. at 1404. The deprivation was therefore unpredictable: “Only when the appellants took action which went beyond the realm of the foreseeable did [plaintiffs] suffer a property deprivation.” Id. The reasoning in Easter House is controlling here. The deprivation of the hiring preference was random and unauthorized. All three branches of the Illinois government had mandated the enforcement of the preference. The legislature enacted § 8b.7 of the Illinois Personnel Code. The Illinois Supreme Court explicitly stated that the statute provided an absolute preference. And the executive issued an order directing that all hiring be done in compliance with the mandated preference. The language we used to describe the actions taken in Easter House perfectly describe the actions taken here. The discretion of the defendants in making the hiring decisions was circumscribed and regulated. Only by acting in a manner “patently inconsistent with Illinois law,” could the defendants deprive the plaintiffs of the hiring preference. This represented “an outright departure from the authority” granted to them under state law." } ]

[ { "docid": "12575349", "title": "", "text": "and unauthorized within the meaning of Parratt if the state delegated to those actors “the power and authority to effect the very deprivation complained of ... [and] the concomitant duty to initiate the procedural safeguards set up by state law,” even if the act in question “was not ... sanctioned by state law.” 494 U.S. at 138, 110 S.Ct. 975. This court has since relied on Zinermon to hold that the acts of high-ranking officials who are “ultimate decision-maker[s]” and have “final authority over significant matters,” even if those acts are contrary to law, should not be considered “random and unauthorized” conduct for purposes of a procedural due process analysis. Velez v. Levy, 401 F.3d 75, 91-92 & nn. 14 & 15 (2d Cir.2005) (internal quotation marks omitted); see also DiBlasio v. Novello, 344 F.3d 292 (2d Cir.2003). The Board argues that the present case is controlled by HANAC, which addressed a contractor’s claim that city officials had de facto debarred it from contracting with the City of New York “in flagrant violation” of the City Charter and city agency rules. 101 F.3d at 881. Finding that the officials’ actions were “random and arbitrary,” rather than pursuant to established state procedures, and that there existed a “perfectly adequate postdeprivation remedy” — an Article 78 proceeding, see N.Y.C.P.L.R. § 7801 (McKinney 1998)-— we held that the state had not deprived the plaintiff of a liberty or property interest without due process of law. 101 F.3d at 881-82. In light of our jurisprudence on the meaning of “random and unauthorized,” however, we are hesitant to accept the Board’s argument. As we clarified in DiBlasio, our determination in HANAC that the state action was random and unauthorized turned on the fact that the contracts officer who effected the deprivation did not have “final authority over significant matters.” 344 F.3d at 303 n. 3 (internal quotation marks omitted). Here, by contrast, the Board of Elections has been delegated the authority to make the kind of deprivation at issue here — the removal of candidates from the ballot. See N.Y. Elec. Law § 6-154. Ultimately," }, { "docid": "12575347", "title": "", "text": "the only allegation of racial discrimination is conclusory. I. Due Process Claim The Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, “only against deprivations without due process of law.” Parrott v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (internal quotation marks omitted), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). As we explained in Hellenic American Neighborhood Action Committee v. City of New York (“HANAC’), in evaluating what process satisfies the Due Process Clause, “the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.” 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Parratt, 451 U.S. at 541, 101 S.Ct. 1908). When the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides meaningful post-deprivation remedy. Id.; see Hudson, 468 U.S. at 533, 104 S.Ct. 3194 (explaining that when deprivations are “random and unauthorized ... predeprivation procedures are simply impracticable since the state cannot know when such deprivations will occur” (internal quotation marks omitted)). In contrast, when the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing. HANAC, 101 F.3d at 880; Parratt, 451 U.S. at 541, 101 S.Ct. 1908. Under those circumstances, “the availability of post-deprivation procedures will not, ipso facto, satisfy due process.” HANAC, 101 F.3d at 880. The distinction between random and unauthorized conduct and established state procedures, however,- is not clear-cut. In Zinermon v. Burch, the Court held that government actors’ conduct cannot be considered random" }, { "docid": "22864217", "title": "", "text": "protection. See Marrero v. City of Hialeah, 625 F.2d 499, 514-15 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). (2) The Process Due Due process generally includes an opportunity for some type of hearing before the deprivation of a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978); Sinaloa Lake Owners Ass’n v. City of Simi Valley, 864 F.2d 1475, 1481-82 (9th Cir.1989), amended, (March 23, 1989). However, there are exceptions to the pre-deprivation hearing requirement. The Supreme Court has stated that “either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of [post-deprivation procedures], can satisfy the requirements of procedural due process.” Parratt v. Taylor, 451 U.S. 527, 539, 101 5.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981). In Parratt the Court concluded that where a deprivation of property is the “result of a random and unauthorized act by a state employee,” id. at 541, 101 S.Ct. at 1916, meaningful predeprivation process is not possible, and that due process requirements may therefore be satisfied by adequate post-deprivation procedures for obtaining a remedy. Citing Parratt, the district court held that even if the plaintiffs’ interests were of constitutional dimension, plaintiffs were not deprived of those interests without due process because available post-deprivation remedies satisfied the requirements of due process. The district court viewed this case as controlled by Parratt because the plaintiffs’ allegations of unlawful retaliation rendered the challenged conduct “random and unauthorized” within the meaning of Parratt, making a meaningful pre-deprivation remedy impractical. We reject the district court’s conclusion that the defendants’ actions were the type of “random and unauthorized” deprivation for which pre-deprivation process is impractical. Nevertheless, we affirm the judgment in favor of the defendants on the procedural due process claim on the basis that the public interest in swift administrative action justifies summary suspension with post-deprivation hearings. The district court construed the “random and unauthorized” language of Parratt too broadly. Parratt is limited to" }, { "docid": "12575346", "title": "", "text": "be considered timely. In entertaining Hess’s untimely objection and removing her from the ballot, she argues, the Board acted contrary to New York election law, thereby depriving her of access to the ballot without procedural due process. She contends that this same unauthorized deprivation amounted to a denial of her and the voter-plaintiffs’ associational and voting rights in violation of the First Amendment. Finally, she alleges that the Board’s action was racially motivated, and so denied her equal protection of the laws. For the reasons to be discussed, we conclude that the plaintiffs — regardless of whether the Board’s action was consistent with state law, a question we do not reach- — have not stated any constitutional violation. We hold that because the state provided Rivera-Powell with a pre-depri-vation hearing and an adequate judicial procedure by which to challenge any alleged illegalities in the Board’s action, Rivera-Powell and her co-plaintiffs have failed to state violations of their procedural due process and First Amendment rights. We also find that their equal protection claim lacks merit because the only allegation of racial discrimination is conclusory. I. Due Process Claim The Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, “only against deprivations without due process of law.” Parrott v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (internal quotation marks omitted), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). As we explained in Hellenic American Neighborhood Action Committee v. City of New York (“HANAC’), in evaluating what process satisfies the Due Process Clause, “the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.” 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468" }, { "docid": "5028990", "title": "", "text": "Process Clause protects against the deprivation of constitutionally protected rights without due process of law. Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 464-65 (2d Cir. 2006). The first issue to consider is whether plaintiff alleges the existence of a constitutionally protected right. It has been recognized that professional licenses may be protected property interests. See, e.g., Donk v. Miller, 365 F.3d 159, 163 (2d Cir.2004). On the other hand, state discretion as to the grant or renewal of a license may militate against a finding of a protected property right. See Spinelli v. City of New York, 2007 WL 766110 *3 (S.D.N.Y. 2007). Once a protected property right is established, the question is whether there has been a deprivation of that right without due process of law. See Adams v. Suozzi, 448 F.Supp.2d 448, 452-53 (E.D.N.Y.2006). As to this issue, courts distinguish between post-deprivation and pre-deprivation remedies. When the challenged state conduct is “random and unauthorized,” procedural due process is satisfied so long as the state provides an adequate post-deprivation remedy. Rivera-Powell, 470 F.3d at 465; Adams, 448 F.Supp.2d at 454. On the other hand, where the deprivation is accomplished pursuant to an established state procedure, the state can, in and certain circumstances must, provide a pre-deprivation remedy. Rivera-Powell, 470 F.3d at 466 (recognizing that where state action is pursuant to policy, availability of post-deprivation remedy does not automatically satisfy due process) (emphasis in original); see also Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996) (in cases alleging action pursuant to official state procedure, post-deprivation remedy will not “ipso facto” satisfy due process). As to the issue of whether challenged conduct is random and unauthorized, or pursuant to state procedure, the Second Circuit has held that for the purpose of a due process analysis, the acts of “ultimate decision-makers,” even if those acts are contrary to state law, are not to be considered as random and unauthorized. Rivera-Powell, 470 F.3d at 465-66 (citations omitted); see, e.g., Adams, 448 F.Supp.2d at 454-55 (County Executive and Chief Executive Officer of" }, { "docid": "23398163", "title": "", "text": "Board member that supports an inference that the appellees acted pretextually in conducting the reduction-in-force. The substance of this pretext inquiry, however, is not central to my disagreement with the Majority. The Majority, concluding that any misconduct that may have occurred was “random and unauthorized”, does not reach this issue, and it instead suggests that Stras-burger’s claim could have been subject to a motion to dismiss — due to Strasburger’s failure to allege that Illinois post-deprivation remedies are inadequate. In this case, because the State was in a unique position to provide Strasburger with meaningful prede-privation procedures, I conclude that the Majority’s “random and unauthorized” conclusion conflicts with Zinermon. For that reason, I respectfully dissent. . I sympathize with the Majority's efforts to make sense out of Strasburger's briefs, in which the arguments arc difficult to construe as set forth. While Strasburger seeks to apply Ziner-mon to the facts of his claim, he styles this constitutional claim as a deprivation of his \"substantive due process property interest in tenured employment” and then argues that neither Par-ratt nor Zinermon are applicable in a substantive due process case. I concur in the Court's disposition of Strasburger’s substantive due process claim and will not address it here. However, despite his confusion over what is an admittedly murky area of the law, I believe that it is evident that Strasburger argues that the alleged deprivation was not \"random and unauthorized.” Of course, whether the deprivation was random and unauthorized is a legal conclusion; Strasburger's characterization of the Board's actions may be rejected if the facts as we review them on summary judgment do not support his argument. . Indeed, evidence presented in this case, if read in the light most favorable to Strasburger, supports an inference that the appellees' economic necessity justification was in fact pretextual. After the School Board suspended and then reinstated Strasburger earlier in the 1993-94 school year, in March of 1994 Strasburger and one other teacher were the first teachers subjected to a reduction-in-force by the Board in thirteen years. The school district was operating at a financial surplus during" }, { "docid": "23398147", "title": "", "text": "of what process-is due.” Doherty, 75 F.3d at 322 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); Forbes v. Trigg, 976 F.2d 308, 315 (7th Cir.1992)). We skip to the second part of the analysis, which is disposi-tive here. To show a failure of due process, a plaintiff might show that state procedures as written do not supply basic due process or that state officials acted in an “random and unauthorized” fashion in depriving the plaintiff of his protected interest, Parratt, 451 U.S. at 540,101 S.Ct. at 1915-16. Strasburger is not challenging the constitutionality of Illinois’ reduction-in-force procedure; that is, he is not arguing that the Illinois procedures do not supply basic due process. He vaguely argues that the School Board’s actions were “random and unauthorized,” id. at 541, 101 S.Ct. at 1916. While the contours of the Parratt jurisprudence are ill-defined, the center of the doctrine is fixéd-one who challenges state action as “random and unauthorized” must also demonstrate that state post-deprivation remedies do not satisfy due process. Id. For the Fourteenth Amendment does not protect against all deprivations; “[t]he Fourteenth Amendment protects only against deprivations “without due process of law.’ ” Id. at 537, 101 S.Ct. at 1914 (quoting Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979)). State law remedies in theory can satisfy due process as well as federal ones, so we require plaintiffs seeking federal remedies to show the state’s remedies lacking. Strasburger has not alleged or shown that Illinois post-deprivation remedies are lacking. Therefore, Strasburger has not made out a procedural due process violation that necessitates a federal remedy. After all, what he complains of is a conspiracy by state officials to deprive him of a state-created property interest. The State of Illinois should have the first chance to assess the alleged violations of its own laws. The district court properly granted summary judgment to the defendants on the second count. D. Intentional Infliction of Emotional Distress Strasburger also claims that the School Board intentionally inflicted emotional distress" }, { "docid": "12575348", "title": "", "text": "U.S. 517, 532, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Parratt, 451 U.S. at 541, 101 S.Ct. 1908). When the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides meaningful post-deprivation remedy. Id.; see Hudson, 468 U.S. at 533, 104 S.Ct. 3194 (explaining that when deprivations are “random and unauthorized ... predeprivation procedures are simply impracticable since the state cannot know when such deprivations will occur” (internal quotation marks omitted)). In contrast, when the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing. HANAC, 101 F.3d at 880; Parratt, 451 U.S. at 541, 101 S.Ct. 1908. Under those circumstances, “the availability of post-deprivation procedures will not, ipso facto, satisfy due process.” HANAC, 101 F.3d at 880. The distinction between random and unauthorized conduct and established state procedures, however,- is not clear-cut. In Zinermon v. Burch, the Court held that government actors’ conduct cannot be considered random and unauthorized within the meaning of Parratt if the state delegated to those actors “the power and authority to effect the very deprivation complained of ... [and] the concomitant duty to initiate the procedural safeguards set up by state law,” even if the act in question “was not ... sanctioned by state law.” 494 U.S. at 138, 110 S.Ct. 975. This court has since relied on Zinermon to hold that the acts of high-ranking officials who are “ultimate decision-maker[s]” and have “final authority over significant matters,” even if those acts are contrary to law, should not be considered “random and unauthorized” conduct for purposes of a procedural due process analysis. Velez v. Levy, 401 F.3d 75, 91-92 & nn. 14 & 15 (2d Cir.2005) (internal quotation marks omitted); see also DiBlasio v. Novello, 344 F.3d 292 (2d Cir.2003). The Board argues that the present case is controlled by HANAC, which addressed a contractor’s claim that city officials had de facto debarred it from contracting with the City of New York “in flagrant violation” of the" }, { "docid": "5047773", "title": "", "text": "Due Process Clause if a meaningful postdeprivation remedy for the loss is available.”). Thus, for example, in Doherty, where the plaintiff presented claims that the defendants had acted with an improper purpose in denying her application for a zoning certificate to operate a bingo hall and had improperly closed a different bingo hall that she operated for operating without a proper license, the Seventh Circuit observed that “it is clear from Ms. Doherty’s complaint that the deprivation she complains of occurred, if at all, as the result of ‘random and unauthorized’ acts[,] [accordingly, she was entitled only to postdeprivation remedies.” 75 F.3d at 324. Following Doherty, to the extent that plaintiffs allege that defendants Sehulter and Shoenberger’s conduct was motivated by a discriminatory or otherwise improper political purpose, this Court concludes that Clark’s deprivation was the result of random and unauthorized acts. So, for this reason as well as the fact that the temporary suspension of Clark’s license involves a matter involving the necessity of quick action by the City, we find that the Due Process Clause is not offended so long as Clark has adequate postdeprivation process available to him. Clark has eschewed any discussion of these principles or any discussion of the post-deprivation process available to him. Instead, as with the Fourth Amendment claim asserted by the plaintiffs, Clark’s focus is solely on the fact that sanitarians dispatched by DCS rather than the Department of Health caused Como’s to be temporarily closed down: “The deprivation was procedural because none of the pre-deprivation procedures of the Health Code or the state rules were respected, given that DCS had no authority to engage in the action it did.” Pis.’ Resp. Defs.’ Mot.S.J. at 25 (emphasis added). As the foregoing discussion should make clear, Clark’s focus on the “pre-deprivation procedures” is misplaced; the pertinent procedural due process question here concerns the adequacy of postdeprivation remedies. And, on this issue Clark has remained completely silent. As the Seventh Circuit has observed on several occasions, “ ‘[i]t is not the role of this court to research and construct legal arguments open to the" }, { "docid": "22458307", "title": "", "text": "“state acts through its high-level officials,” the decisions of these officials more closely resemble established state procedures than the haphazard acts of individual state actors that the Hellenic American exception was designed to cover. DiBlasio, 344 F.3d at 303. The health commissioner’s actions in DiBlasio could therefore not be deemed to be random or unauthorized, and pre-removal process was required. On that basis, plaintiffs liberty interest claim was reinstated. Id. Here, with respect to Chancellor Levy, our reasoning in DiBlasio applies with equal force. Levy is precisely the sort of “high ranking” official identified by this line of cases. Just as in DiBlasio, where the commissioner “had the authority to suspend summarily DiBlasio’s license, and had the duty as commissioner to ensure that the department followed the prescribed procedures governing summary suspensions,” id. at 304, Levy had the authority to remove Velez, and the duty as Chancellor to follow the governing New York statutes and regulations. And, as in DiBlasio, “any abuse of that authority that rose to the level of a due process violation cannot be considered ‘random and unauthorized.’ ” Id. Accordingly, Velez was entitled to a pre-deprivation hearing before Levy executed the decision to remove her from the board. It follows that the plaintiffs allegation that the Chancellor acted without providing an adequate pre-deprivation hearing states a valid claim under the Due Process Clause of the United States Constitution. We hold otherwise, however, with respect to the plaintiffs procedural due process cause of action against the board members. To begin with, it seems to us likely that the board members’ alleged acts — inventing a story of the plaintiffs criminal behavior in an effort to secure her removal from the board — fall within the “random and unauthorized” exception articulated in Hellenic American. More important, none of the board member defendants had the power to provide process to the plaintiff. They did not undertake or oversee the investigation, and they could order neither pre-removal review nor post-removal remedies. As a consequence they cannot be held legally accountable for the alleged process failure. The same is true as" }, { "docid": "22864218", "title": "", "text": "id. at 541, 101 S.Ct. at 1916, meaningful predeprivation process is not possible, and that due process requirements may therefore be satisfied by adequate post-deprivation procedures for obtaining a remedy. Citing Parratt, the district court held that even if the plaintiffs’ interests were of constitutional dimension, plaintiffs were not deprived of those interests without due process because available post-deprivation remedies satisfied the requirements of due process. The district court viewed this case as controlled by Parratt because the plaintiffs’ allegations of unlawful retaliation rendered the challenged conduct “random and unauthorized” within the meaning of Parratt, making a meaningful pre-deprivation remedy impractical. We reject the district court’s conclusion that the defendants’ actions were the type of “random and unauthorized” deprivation for which pre-deprivation process is impractical. Nevertheless, we affirm the judgment in favor of the defendants on the procedural due process claim on the basis that the public interest in swift administrative action justifies summary suspension with post-deprivation hearings. The district court construed the “random and unauthorized” language of Parratt too broadly. Parratt is limited to situations “in which the state administrative machinery did not and could not have learned of the deprivation until after it had occurred.” Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (en banc); see also Merritt v. Mackey, 827 F.2d 1368, 1372 (9th Cir.1987). That is not the case here. Although retaliatory intent may render the defendants’ conduct unauthorized, it is not random in that the injury is sufficiently predictable to make a pre-deprivation remedy practicable. The decision to suspend the permits and notify Gasco’s customers was a deliberate decision made by the officials possessing the authority to suspend permits at their discretion. See Merritt, 827 F.2d at 1372. Defendant Morgan testified that this decision was made after considering a range of possible alternatives. However, the “random and unauthorized” deprivation is only one of two situations outlined in Parratt in which post-deprivation process may be adequate. It is well-settled that protection of the public interest can justify an immediate seizure of property without a prior hearing. See, e.g., North American Cold Storage Co. v. City" }, { "docid": "5074763", "title": "", "text": "can no more anticipate and control in advance the unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent. If negligent deprivations of property do not violate the Due Process Clause because pre-deprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state post-deprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the State’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy. Id. at 3203-04. Neither Parratt nor Hudson dealt with liberty deprivations. Even were this court not bound by applicable Seventh Circuit precedent applying Parratt to liberty cases, see, e.g., Wolf-Lillie, 699 F.2d at 871, plaintiff’s argument would fail. The reasoning of Hudson indicates without doubt that any rigid distinction between “liberty” and “property,” like that between negligent and intentional deprivations, is meaningless insofar as the practicability of affording predeprivation process is concerned. It would be anomalous, for example, to uphold a § 1983 claim for a state-caused automobile collision simply because the accident resulted in death or personal injury as opposed to mere property damage. The state can no more anticipate and control random and unauthorized deprivations of liberty than it can anticipate similarly unauthorized property deprivations. The difference in injury is entirely unforeseen, and therefore irrelevant in determining the degree of procedural protections constitutionally required. The conclusion that Parratt applies to liberty as well as property deprivations is further implicit in that opinion’s citation and discussion of Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In Ingraham, the Court had held the administering" }, { "docid": "23398146", "title": "", "text": "not made out a genuine issue of material fact as to all the elements of his claim, and the district court properly granted ' summary judgment on the property interest count. Strasburger styles his property interest claim as a violation of “substantive due process.” However, under that heading he also makes arguments that are more properly categorized as violations of procedural due process. For example, he complains that he “was given no notice and no hearing at any time before any part of his termination” and “he has been harmed by the absence of such notice and a hearing,” and “[h]e has not been afforded ‘due process’ by the board officials before they took his protected property interest in his tenured employment.” Br. for Appellant at 7. We will read his brief as making a procedural due process argument in addition to his substantive ones. “Procedural due process claims require a two-step analysis. The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a determination of what process-is due.” Doherty, 75 F.3d at 322 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); Forbes v. Trigg, 976 F.2d 308, 315 (7th Cir.1992)). We skip to the second part of the analysis, which is disposi-tive here. To show a failure of due process, a plaintiff might show that state procedures as written do not supply basic due process or that state officials acted in an “random and unauthorized” fashion in depriving the plaintiff of his protected interest, Parratt, 451 U.S. at 540,101 S.Ct. at 1915-16. Strasburger is not challenging the constitutionality of Illinois’ reduction-in-force procedure; that is, he is not arguing that the Illinois procedures do not supply basic due process. He vaguely argues that the School Board’s actions were “random and unauthorized,” id. at 541, 101 S.Ct. at 1916. While the contours of the Parratt jurisprudence are ill-defined, the center of the doctrine is fixéd-one who challenges state action as “random and unauthorized” must also demonstrate that state post-deprivation remedies do" }, { "docid": "15036448", "title": "", "text": "Count VIII ¶ 8(g); Count XV, 118(g)). As noted above the plaintiffs have also alleged that the defendants seized the plaintiffs without due process of law. The defendants argue that these are essentially procedural due process claims which the court should dismiss pursuant to Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), because the plaintiffs’ post-deprivation remedies satisfy the Due Process Clause. In response, the plaintiffs argue that no emergency existed to justify commandeering civilian vehicles to use as a roadblock, therefore the defendants were not justified in seizing the plaintiffs, or their vehicles, without a prior hearing. (Suggestions in Opposition, p. 33). In Parratt, the Court recognized that the state satisfies due process if the necessity of quick action makes pre-deprivation process impractical, and the state provides adequate post-deprivation remedies. The Court reasoned that where a state employee acts randomly, and without authorization, to deprive a person of property, the state cannot predict when the loss will occur. Id. at 541, 101 S.Ct. at 1916. As long as the state provides an adequate post-deprivation remedy, the state satisfies due process. In this case, the plaintiffs do not challenge the adequacy of the post-deprivation remedies, nor do the plaintiffs argue that the defendants could have afforded pre-deprivation process to them. Rather, the plaintiffs contend that the seizure itself was not justified. Whether the seizure is justified has no relevance to the issue of adequate process. The procedural due process question is not whether the seizure was rational, reasonable, or justifiable, but whether the defendants seized the plaintiffs without sufficient process. Consistent with Parratt the court must look at two issues: first, whether the pre-deprivation hearing was impractical; and second, whether the post-deprivation remedies are adequate. The petition on its face alleges that the defendants’ acts were unauthorized. The court is convinced that a roadblock as part of a pursuit of a fleeing suspect qualifies as random. Therefore, according to Parratt, the state could not have predicted when the loss would occur, making pre-deprivation process impossible. The next question is whether state tort law provides a" }, { "docid": "12575350", "title": "", "text": "City Charter and city agency rules. 101 F.3d at 881. Finding that the officials’ actions were “random and arbitrary,” rather than pursuant to established state procedures, and that there existed a “perfectly adequate postdeprivation remedy” — an Article 78 proceeding, see N.Y.C.P.L.R. § 7801 (McKinney 1998)-— we held that the state had not deprived the plaintiff of a liberty or property interest without due process of law. 101 F.3d at 881-82. In light of our jurisprudence on the meaning of “random and unauthorized,” however, we are hesitant to accept the Board’s argument. As we clarified in DiBlasio, our determination in HANAC that the state action was random and unauthorized turned on the fact that the contracts officer who effected the deprivation did not have “final authority over significant matters.” 344 F.3d at 303 n. 3 (internal quotation marks omitted). Here, by contrast, the Board of Elections has been delegated the authority to make the kind of deprivation at issue here — the removal of candidates from the ballot. See N.Y. Elec. Law § 6-154. Ultimately, however, the question of how to classify the Board’s action is immaterial, and so we do not decide it. If we were to determine that the Board’s conduct was random and unauthorized, bringing it within HANAC, the existence of a meaningful post-deprivation remedy (which New York has provided in this case, as we discuss below) would automatically satisfy procedural due process. See HANAC, 101 F.3d at 880. If, on the other hand, we were to find that the Board’s decision was part of an established state procedure, such that the availability of a post-deprivation remedy would not automatically satisfy due process, we would merely go on to determine what process was due. See Locurto v. Safir, 264 F.3d 154, 172 (2d Cir.2001). This we do by balancing the following three factors: 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" }, { "docid": "9592229", "title": "", "text": "pre deprivation procedures were inadequate. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Loudermill v. Cleveland Board of Education, 721 F.2d at 560. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that where an individual is deprived of property because of the negligent, random and unauthorized act of a state employee, it is impracticable for the state to provide any meaningful predepri vation procedure. Since a state cannot predict when its employees will act in a random and unauthorized manner, it is impracticable in such cases to require the state to provide meaningful predeprivation procedures. The Supreme Court has extended the Parratt holding to intentional deprivations of property which result from the random and unauthorized acts of state employees. Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984). Again, the rationale is that a state cannot predict when its employees will act in a random and unauthorized manner so as to provide a meaningful predeprivation procedure. Parratt, however, has not been extended to acts of state employees which are not random and unauthorized, but which are done pursuant to State procedures. Hudson v. Palmer, 104 S.Ct. at 3203; Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). As the Supreme Court explained in Hudson: Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 [102 S.Ct. 1148, 71 L.Ed.2d 265] (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. 104 S.Ct. at 3203. Like the complainant in Logan, the plaintiff in the case at bar has challenged actions which were done pursuant to established state procedure. We must therefore determine whether the predeprivation procedures afforded the plaintiff satisfied the due process requirement, regardless of the availability of any postdeprivation procedures. Logan, supra, at 436. See also Loudermill v." }, { "docid": "4137140", "title": "", "text": "procedures and “random and unauthorized acts,” and the surrounding legal framework, as established by Par-ratt, Hudson and the cases that followed those decisions. When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees .... In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy.... When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process.... The Supreme Court’s different treatment of the two situations rests on pragmatic considerations.... When a deprivation occurs because of a random, arbitrary act by a state employee “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under ‘color of law,’ is ... almost ... [invariably] beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Furthermore, “[that] an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for pre-deprivation process.” Hellenic, 101 F.3d at 880-81 (citations omitted). The parties dispute whether the defendants’ alleged nonfeasance regarding the plaintiffs disability retirement benefits constituted a “random and unauthorized” act. In this regard, the Court’s consideration is limited to the allegations in the plaintiffs complaint. Despite the defendants’ urging, at this point the Court cannot say with any degree of certainty whether the defendants’ act of merely refusing to entertain the plaintiffs application occurred within the context of established state procedures or if it was a random and unauthorized act of the type discussed in Hellenic. While it may be a reasonable assumption that the defendants receive" }, { "docid": "9592228", "title": "", "text": "Board of Education, 721 F.2d 550, 560 (6th Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 2384, 81 L.Ed.2d 343 (1984). Due process of law does not require th,at every employee with a property interest be given a full evidentiary hearing prior to termination. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The defendants contend that there were sufficient posttermination procedures available to the plaintiff to satisfy due process even if the pretermination procedures were insufficient. Ohio Rev.Code § 124.34, for example, provides that when an employee is removed, “the employee may file an appeal ... with the state personnel board of review or the commission.” The employee may then appeal the decision of the personnel board or the commission to the court of common pleas. The defendants contend that the plaintiff is at fault because he made no attempt to take advantage of these procedures. The fact that the State of Ohio provides discharged employees with these post deprivation procedures, however, does not satisfy procedural due process if the pre deprivation procedures were inadequate. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Loudermill v. Cleveland Board of Education, 721 F.2d at 560. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that where an individual is deprived of property because of the negligent, random and unauthorized act of a state employee, it is impracticable for the state to provide any meaningful predepri vation procedure. Since a state cannot predict when its employees will act in a random and unauthorized manner, it is impracticable in such cases to require the state to provide meaningful predeprivation procedures. The Supreme Court has extended the Parratt holding to intentional deprivations of property which result from the random and unauthorized acts of state employees. Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984). Again, the rationale is that a state cannot predict when its employees will act in a random and unauthorized manner so as to provide" }, { "docid": "9182028", "title": "", "text": "foresee the deprivation and provides adequate post-deprivation remedies. Id. at 544, 101 S.Ct. 1908. By contrast, the Court in Zinermon ruled state tort remedies insufficient because the government could have foreseen that holding a hearing before committing a person to a mental health facility would avoid erroneous commitments. 494 U.S. at 136-37, 110 S.Ct. 975. These cases address whether post-deprivation remedies standing alone satisfy due process, in the absence of any pre-deprivation hearing. Here, Tucker received both a pre-deprivation hearing and an avenue to seek post-deprivation relief through judicial review. While Parratt holds that post-deprivation remedies may be sufficient if the deprivation is \"random and unauthorized,\" neither Parratt nor Zinermon stands for the proposition that post-deprivation remedies are otherwise irrelevant to a procedural due process claim. Rather, the adequacy of pre-deprivation proceedings may turn on the availability and nature of post-deprivation remedies. See Parratt , 451 U.S. at 541, 101 S.Ct. 1908 (noting precedents excusing pre-deprivation hearings \"have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities\"); see also Michalowicz , 528 F.3d at 536-37 (\"[W]hen adequate post-termination proceedings exist, a pretermination hearing need only provide an initial check against mistaken decisions ....\") (quotation omitted). As Tucker points out, a plaintiff need not exhaust her remedies through state agencies or courts before bringing a § 1983 claim. Veterans Legal Def. Fund v. Schwartz , 330 F.3d 937, 941 (7th Cir. 2003). But that is not to say post-deprivation remedies are irrelevant to a procedural due process claim. Id . (noting that the \"whole idea of a procedural due process claim is that the plaintiff is suing because the state failed to provide adequate remedies\"); see also Dusanek v. Hannon , 677 F.2d 538, 543 (7th Cir. 1982) (\"[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them.\"). Indeed, a plaintiff who foregoes her right to pursue post-deprivation remedies available under state law faces a high hurdle in establishing" }, { "docid": "8259924", "title": "", "text": "defendants state that plaintiffs rights were terminated pursuant to Section 207-c because a medical examiner determined that plaintiff was able to perform light-duty work. (Defs. Reply Mem. Supp. Mot. Dismiss at 2-3.) Therefore, defendants were acting pursuant to established state regulation. In situations where a government actor is acting pursuant to established state regulation, and therefore the act is a foreseeable result, some minimal pre-termination proceeding is required. Defendants have not cited, nor are we aware of, any law to the contrary. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-37, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (holding that post-deprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action). Indeed, defendants cite a case that makes this very point. (Defs. Mem. Supp. Mot. Dismiss at 4 (citing Hellenic Am. Neighborhood Action Comm., 101 F.3d at 880-81).) The Second Circuit in Hellenic American Neighborhood Action Committee stated: When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful post-deprivation remedy.... When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of post-deprivation procedures will not, ipso facto, satisfy due process. Id. at 880-81 (determining plaintiffs claims, alleging that due process violations were caused by a state official’s actions in flagrant violation of the City Charter and Rules and not by an established state procedure, could not survive because New York provided adequate post-deprivation procedures) (internal citations omitted); see McDarby v. Dinkins, 907 F.2d 1334, 1337-38 (2d Cir.1990) (“When the minimal due process requirements of notice and hearing have been met, a claim that an agency’s policies or regulations have not been adhered to does not sustain an action" } ]

[ { "docid": "23147493", "title": "", "text": "ordered the United States Marshal to effect service, but only after Moore completed waiver of service forms. DCD # 9. Moore contends that this constitutes error. We agree. We review the district court’s decision to dismiss an action for untimely service for an abuse of discretion. Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985) (per curiam). 28 U.S.C. § 1915(d) states that, for purposes of proceeding in forma pauperis, “[t]he officers of the court shall issue and serve all process, and perform all duties in such cases.” This language is compulsory. Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 302, 109 S.Ct. 1814, 1818, 104 L.Ed.2d 318 (1989) (“Congress ... knew how to require service when it deemed compulsory service appropriate.”). Submitting a waiver of service is a component of “all process” and § 1915(d) compels the officers of the court to perform “all duties” associated with such process. “So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service ‘is automatically good cause with the meaning of [Fed.R.Civ.P. 4(m) ].’ ” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994) (internal citation omitted). Moore’s complaint lists all defendants and their addresses. DCD # 1, at 2B. Accordingly, Moore’s cause of action against these defendants cannot be dismissed for failure to complete waiver of service forms because an inmate such as Moore, proceeding in forma pauperis, is not required to do so. Waiver of service is the responsibility of the United States Marshal in these settings. II. Moore next argues that the district court erred by granting summary judgment. To succeed on his medical claims, Moore must prove by a preponderance of the evidence a “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Moore must demonstrate that the medical deprivation was objectively serious and that prison officials subjectively knew about the deprivation and refused to remedy it. Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir.1997). A medical need is serious" } ]

[ { "docid": "22914414", "title": "", "text": "in the delivery of inmate reading materials will not support, even as against a motion to dismiss, a cause of action grounded upon the First Amendment. Id. Measured against this standard, Mr. Rowe’s factual allegations do not state a First Amendment claim. Accepting his factual allegations as true, the delays in receiving mail from Dr. Lant were relatively short-term and sporadic. Moreover, Mr. Rowe did not allege that the delays resulted from a content-based prison regulation or practice. We also note that, because Mr. Rowe did not allege that Dr. Lant’s correspondence to him was legal mail or that it was lost rather than delayed, his case is distinguishable from our other cases in which we held that prisoners had stated a cause of action under the First Amendment. Cf. Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir.1996) (prisoner’s allegations that legal mail was opened, delayed for an inordinate period of time, and sometimes stolen stated a First Amendment claim); Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304 (7th Cir.1993) (ongoing interference with legal mail sufficient to state a First Amendment claim). Moreover we note that Mr. Rowe’s due process arguments based on the mandatory language of Indiana statutes and prison regulations'are foreclosed by the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). We now turn our attention to Mr. Rowe and Dr. Lant’s arguments concerning the district court’s dismissal of Dr. Lant’s First Amendment claim. They contend that Dr. Lant asserted his own First Amendment rights, giving him standing to sue. They further argue that the district court should not have dismissed Dr. Lant’s claims without service being made upon the defendants because Dr. Lant is not a prisoner. As to their standing argument, non-prisoners do indeed have a First Amendment right to correspond with prisoners. See Thornburgh, 490 U.S. at 407, 109 S.Ct. 1874; Procunier v. Martinez, 416 U.S. 396, 408-09, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459; Montcalm Publ’g" }, { "docid": "23625359", "title": "", "text": "51 F.3d 710, 712 (7th Cir.1995) (“The Marshals Service is required to serve process on behalf of individuals proceeding in for-ma pauperis.”). III. Our sister circuits have held that a plaintiff has shown “good cause” for purposes of a dismissal pursuant to Rule 4(m) when a United States Marshal has failed to properly serve process through no fault of the plaintiff. See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986) (finding “good cause” and holding that the district court erred in dismissing a pro se inmate’s case proceeding informa pauper-is for failure to effect service “because the U.S. Marshal had yet to effect personal process through no fault of the litigant”); Rochon v. Daivson, 828 F.2d 1107, 1110 (5th Cir.1987) (holding “that a plaintiff proceeding in forma pauperis is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal’s Service to properly effect service of process, where such failure is through no fault of the litigant”); Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990) (holding “that an incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and, having provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them under 28 U.S.C. § 1915(c) and Rule 4 of the Federal Rules of Civil Procedure”); Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990) (providing that “[t]he [United States] Marshal’s failure to accomplish the task [of effectuating service on behalf of a prisoner-plaintiff where the district court instructed the Marshal to do so] is automatically ‘good cause’ within the meaning of Rule 4(j)”); Dumaguin v. Sec’y of Health and Human Servs., 28 F.3d 1218, 1221 (D.C.Cir.1994) (providing that “good cause existed under Federal Rule of Civil Procedure 4(j) to excuse [the plaintiffs] failure to personally serve the United States Attorney” where" }, { "docid": "22926048", "title": "", "text": "“unhygienic.” Because the complaint failed to allege that Johnson had disregarded a known risk, the district court properly dismissed the claim against Johnson. See Farrow, 320 F.3d at 1245. B. Failure to Serve McNealy Richardson argues that the district court erred in dismissing his claim under Rule 4(m) for the failure to timely serve McNealy. Richardson contends that, because he was a pro se prisoner-litigant proceeding IFP, the court-appointed process server was responsible for effecting service on McNealy. The sua sponte dismissal of a complaint for failure to serve under Rule 4(m) is reviewed for an abuse of discretion. Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir.2009). Under this standard, we affirm “unless [we] find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Id. Under Rule 4(m), the district court “must dismiss the action without prejudice ... or order that service be made within a specific time” if the defendant has not been served within 120 days of the filing of the complaint. Fed.R.Civ.P. 4(m). The court must extend the time for service, however, if the plaintiff shows “good cause” for the failure. Id. When a court grants a litigant leave to proceed IFP, the officers of the court must “issue and serve all process.” 28 U.S.C. § 1915(d). “[T]he failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes ‘good cause’ for the plaintiffs failure to effect timely service within the meaning of Rule 4(m).” Rance, 583 F.3d at 1288. Thus, to determine whether the district court abused its discretion by failing to extend the time for service, we must determine whether Richardson was at fault for failing to provide an up-to-date address for McNealy. We have no binding authority stating whether a pro se prisoner-litigant proceeding IFP is at fault when he cannot provide the current address of a prison guard to the court-appointed service agent. In Ranee, we reversed a Rule 4(m) dismissal when “[n]othing in the record indicate[d]" }, { "docid": "22926051", "title": "", "text": "reasoned that [p]rison guards do not want prisoners to have their home addresses, and the Bureau of Prisons is reluctant to tell prisoners even the current place of employment of their former guards. This is a sensible precaution, for prisoners aggrieved by guards’ conduct may resort to extra-legal weapons after release if they do not deem the results of the litigation satisfactory .... Because the Marshals Service is part of the Department of Justice, 28 U.S.C. § 561, it should have ready access to the necessary information. Id. at 602. In a subsequent decision, the Seventh Circuit applied Sellers to a pro se prisoner proceeding IFP in a state prison: The present cases involve state prisoners, not federal prisoners, but the distinction is irrelevant. Sellers is grounded in the belief that use of marshals to effect service alleviates two concerns that pervade prisoner litigation, state or federal: 1) the security risks inherent in providing the addresses of prison employees to prisoners; and 2) the reality that prisoners often get the “runaround” when they attempt to obtain information through governmental channels and needless attendant delays in litigating a case result. Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir.1995). The Graham court vacated the district court’s Rule 4(m) dismissal and remanded the case for a determination whether the Marshal service could have obtained the new addresses of the prison-guard defendants with reasonable effort. If so, their failure to do so would automatically have constituted “good cause” under Rule 4(m). We find this reasoning persuasive. It is unreasonable to expect incarcerated and unrepresented prisoner-litigants to provide the current addresses of prison-guard defendants who no longer work at the prison. Thus, we conclude that, as long as the court-appointed agent can locate the prison-guard defendant with reasonable effort, prisoner-litigants who provide enough information to identify the prison-guard defendant have established good cause for Rule 4(m) purposes. We therefore vacate the district court’s dismissal of Richardson’s claim against McNealy and remand to the district court for a determination whether McNealy can be located with reasonable effort. If so, McNealy must be served; otherwise, the" }, { "docid": "23699511", "title": "", "text": "court to dismiss. (Emphasis added.) Mann appeals. II The correctness of the district court’s dismissal on statute of limitations grounds is a question of law reviewed de novo. See Underwood Cotton Co., Inc. v. Hyundai Merch. Marine (Am.), Inc., 288 F.3d 405, 407 (9th Cir.2002). The interpretation of a Federal Rule of Civil Procedure is also a question of law reviewed de novo. See United States v. Foster, 227 F.3d 1096,1099 (9th Cir.2000). III This appeal requires resolution of two issues. First, we address whether Mann’s failure to serve process within the initial 120-day period prescribed by Fed. R.Civ.P. 4(m) caused the statute of limitations to start to run again. We conclude that it did not. Once a complaint is filed, the statute of limitations is tolled unless and until the district court dismisses the action. See 4 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1053 (3d ed. 2002). Second, we address whether the district court had the discretion to extend the time to serve process even after the 120-day period had expired. We conclude that it did. Fed.R.Civ.P. 4(m) provides: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has expired. Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day period. Cf. Henderson v. United States, 517 U.S. 654, 661, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (concluding that “the 120-day provision operates not as an outer limit subject to reduction, but as an irreducible allowance”). The district court’s discretion is not" }, { "docid": "22926049", "title": "", "text": "the complaint. Fed.R.Civ.P. 4(m). The court must extend the time for service, however, if the plaintiff shows “good cause” for the failure. Id. When a court grants a litigant leave to proceed IFP, the officers of the court must “issue and serve all process.” 28 U.S.C. § 1915(d). “[T]he failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes ‘good cause’ for the plaintiffs failure to effect timely service within the meaning of Rule 4(m).” Rance, 583 F.3d at 1288. Thus, to determine whether the district court abused its discretion by failing to extend the time for service, we must determine whether Richardson was at fault for failing to provide an up-to-date address for McNealy. We have no binding authority stating whether a pro se prisoner-litigant proceeding IFP is at fault when he cannot provide the current address of a prison guard to the court-appointed service agent. In Ranee, we reversed a Rule 4(m) dismissal when “[n]othing in the record indicate[d] that [the plaintiff] share[d] in the Marshal’s fault for failure to effectuate service.” Id. at 1288. In Fowler v. Jones, 899 F.2d 1088, 1094 (11th Cir.1990), we reasoned that a pro se prisoner-litigant proceeding IFP was not at fault when he had acted reasonably. “[G]iven that he was incarcerated and unrepresented, so that neither he nor legal counsel acting on his behalf was able to check the case file at the courthouse to determine the status of service,” id. at 1095-96, we concluded that the prisoner-litigant was not at fault when he “request[ed] service upon the appropriate defendant and attempted] to remedy any apparent service defects of which [he] ha[d] knowledge.” Id. (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987)). In a case with nearly identical facts, the Seventh Circuit held that “when the district court instructs the Marshal to serve papers on behalf of a prisoner, the prisoner need furnish no more than the information necessary to identify the defendant.” Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990). The court" }, { "docid": "22478023", "title": "", "text": "of the person who was to be served. . The United States Supreme Court and this Circuit have recently held that the 1993 amendments to Rule 4 also permit a court to extend the time for service even if no good cause is shown. See Henderson v. United States, — U.S. —, —, 116 S.Ct. 1638, 1643, 134 L.Ed.2d 880 (1996); Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.1996). Because we hold that Lindsey has made a showing of good cause, we need not address the question of whether Lindsey is entitled to relief absent a showing of good cause. . We proceeded under the 1987 version of Rule 4(c)(2)(B) (which is now Rule 4(c)(2)). 828 F.2d at 1109 n. 1. . See Byrd v. Stone, 94 F.3d at 219-20 (clerk of court and Marshals Service); Antonelli v. Sheahan, 81 F.3d 1422, 1426 (7th Cir.1996) (Marshals Service); Graham v. Satkoski, 51 F.3d 710, 712-13 (7th Cir. 1995) (same); Lujano v. Omaha Pub. Power Dist., 30 F.3d 1032, 1033-35 (8th Cir.1994) (Magistrate Judge); Dumaguin v. Secretary of Health & Human Servs., 28 F.3d 1218, 1221 (D.C.Cir.1994) (Marshals Service), cert. denied, - U.S. -, 116 S.Ct. 94, 133 L.Ed.2d 50 (1995); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994) (acknowledging that in for-ma pauperis plaintiff is entitled to rely - on the Marshals Service for service of process, but holding that plaintiff's failure to provide the Service with sufficient information and failure to request that defendant be served amounted to a failure to show good cause). .Pursuant to Rule 4(i), Lindsey was required to also serve a U.S. Attorney (or AUSA or clerical employee) and the U.S. Attorney General." }, { "docid": "22478014", "title": "", "text": "purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 .... (Emphasis added). Once the in forma pau-peris plaintiff has taken reasonable steps to identity the defendant(s), “Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the proposition that ... the court is obligated to issue plaintiffs process to a United States Marshal who must in turn effectuate service upon the defendants .... ” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996) (emphasis added). If proper service is not made within 120 days of filing the complaint, the action is subject to sua sponte dismissal, without prejudice, by the district court after notice to the plaintiff. Fed.R.Civ.P. 4(m). However, dismissal is improper “if the plaintiff shows good cause for the failure” to properly effect service. Id. We have held that “[t]o establish ‘good cause’ the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually do not suffice.” Peters, 9 F.3d at 345. Upon a showing of good cause, the district court “shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). The district court in this case provided no reasons for denying Lindsey’s request to have the clerk of court serve the United States or for refusing to reinstate Lindsey’s case. We must therefore assume the district court found that (1) its refusal to direct the clerk of court (or anyone else) to serve the United States did not excuse Lindsey’s failure to properly serve the United States, and (2) Lindsey’s failure to procure from the clerk of court the proper summons form required by Fed.R.Civ.P. 4(a) also did not constitute good cause for Lindsey’s failure to properly serve the United States. The district court abused its discretion in so finding. What amounts to “good cause” under any particular set of circumstances is necessarily fact-sensitive. Although we have found no decision within this Circuit that sheds light on the precise issues raised in" }, { "docid": "22580864", "title": "", "text": "Service to accomplish their respective duties to issue and serve process for plaintiff proceeding in forma pauperis constitutes a showing of good cause under Fed. R.Civ.P. 4. In so holding, we align ourselves with those other Courts of Appeal that confer a showing of automatic good cause on similarly situated plaintiffs. E.g., Dumaguin v. Secretary of Health and Human Servs., 28 F.3d 1218, 1221 (D.C.Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 94, 133 L.Ed.2d 50 (1995) (United States Marshals Service’s failure to effectuate service of process constitutes good cause under Rule 4); Puett v. Blandford, 912 F.2d 270, 276 (9th Cir.1990) (plaintiff should not be penalized for failure to effect service where Marshals Service failed to perform duties required under § 1915(c)); Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990) (Marshal’s failure to effect service is automatic good cause within Fed. R. Civil P. 4). We therefore decline to hold plaintiff responsible for the court’s failure to effect timely service of his original complaint. III. The order of the district court is vacated and the cause is remanded to the district court for proceedings consistent with this opinion. . Fed.R.Civ.P. 4(i)(2) requires that in a suit against the Secretary in his official capacity, the summons and complaint must be served upon the Attorney General of the United States, the Secretary, and the local United States Attorney’s office. . At the time plaintiff filed his complaint, Fed. R.Civ.P. 4(j) provided the time period in which to effect service of process: Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. While plaintiff's case was pending, this rule was amended by current Rule 4(m), effective December 1, 1993. Rule 4(m) provides: Time Limit for" }, { "docid": "16742492", "title": "", "text": "this delay. This statutory escape provision essentially duplicates the equitable remedy provided by equitable tolling. In Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985), this court held that “good cause” under Rule 4(m) requires: at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of “good faith on the part of the party seeking an enlargement and some reasonable basis for noneompliance within the time specified” is normally required. (quoting 4A Wright & Miller Federal Practice and Procedure: Civil § 1165 at 480) (emphasis in original). Rule 4(m)’s good cause standard thus allows plaintiffs to raise substantially the same equitable arguments that they can raise under the equitable tolling doctrine. See Baldwin County, 466 U.S. at 151, 104 S.Ct. at 1725. Under Rule 4(m), a plaintiff can resist the government’s motion to dismiss for tardy service on grounds that he has “good cause” for the delay. If the district court concludes that a plaintiff has not shown good cause for failing-to timely effect service and grants the government’s motion to dismiss, the plaintiff can appeal the court’s dismissal. The availability of this express legal remedy precludes the applicability of equitable tolling in a second suit. We conclude, therefore, that Lambert cannot rely on the doctrine of equitable tolling to preserve his FTCA claim. If equitable tolling were available to Lambert in this case, he would have an opportunity to re-litigate essentially the same issues the district court considered when the court dismissed his first-suit under Rule 4(m). Accordingly, we AFFIRM the district court’s dismissal of Lambert’s FTCA suit as untimely under § 2401(b). AFFIRMED. . In rejecting equitable tolling, the court also noted that the plaintiff “failed to act with due diligence in pursuing his cause of action against the government.\" Id. at 1483. Lambert's failure to timely serve the government demonstrates a similar lack of diligence. See Wilson v. Grumman Ohio Corp., 815 F.2d 26, 29 (6th Cir.1987) (“Wilson's lack of diligence" }, { "docid": "20950831", "title": "", "text": "Oyama did not bring a motion to enlarge, and that Pioneer did not apply to the Rule 4 service requirement. Oyama now appeals the BAP’s decision. III. We independently review a bankruptcy court’s rulings on appeal from the BAP. (In re Weisberg), 136 F.3d 655, 657 (9th Cir.1998). Legal conclusions of the BAP are reviewed de novo. McClellan Fed. Credit Union v. Parker (In re Parker), 139 F.3d 668, 670 (9th Cir.1998). Dismissal of a complaint for failure timely to serve summons and complaint is reviewed for abuse of discretion. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994). IY. The time for service in an adversary proceeding may be extended under two different rules: Rule 4(m) of the Federal Rules of Civil Procedure, and Bankruptcy Rule 9006(b). Bankruptcy Rule 7004(a) incorporates by reference Rule 4(m) into the Bankruptcy Rules. Rule 4(m) requires a two-step analysis in deciding whether or not to extend the prescribed time period for the service of a complaint. See Fed.R.Civ.P. 4(m); Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir.1995). First, upon a showing of good cause for the defective service, the court must extend the time period. Second, if there is no good cause, the court has the discretion to dismiss without prejudice or to extend the time period. Id. Rule 9006(b) gives the court discretion to extend any time period stated in the rules upon a showing of excusable neglect. After the time period has expired, however, an extension can be granted only upon motion. The issue in this case is whether the excusable neglect provision of Rule 9006(b) applies to the time period stated in Rule 4(m), despite the fact that Rule 4(m) contains its own good cause standard. Because established rules of statutory construction require us to read these rules as supplementing, rather than contradicting, each other, we hold that the excusable neglect provision of Rule 9006(b) applies to Rule 4(m). A. Good Cause Under Rule 4(m) Oyama argues that the bankruptcy court abused its discretion by failing to find good cause to extend the service period. Oya-ma" }, { "docid": "23392435", "title": "", "text": "court shall issue and serve all process ... in [in forma pauperis] cases.”); Fed.R.Civ.P. 4(c)(3); Wright v. Lewis, 76 F.3d 57, 59 (2d Cir.1996) (a plaintiffs in forma pauperis status \"shift[s] the responsibility for serving the complaint from [the plaintiff] to the court”). The failure of the U.S. Marshals Service to properly effect service of process constitutes \"good cause” for failure to effect timely service, within the meaning of Federal Rule of Civil Procedure 4(m). See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986) (reversing dismissal where the U.S. Marshals Service failed to effect timely personal service through no fault of the plaintiff). Here, the Bureau of Prisons returned unsigned requests for waivers of service on behalf of Sepanek and Lappin, explaining that Sepanek was on \"extended medical leave” and Lappin had retired. Under these circumstances, it was error for the district court to dismiss Walker's claims against Sepanek and Lappin for failure to serve without considering whether Walker attempted to effect personal service on them through the U.S. Marshals Service and whether the Marshals' failure to serve them constitutes \"good cause” for failure to effect proper service. See id. Walker does not contest the dismissal of his claims against Lappin. On remand, the district court shall consider whether Walker may be entitled to another opportunity to serve Sepanek. . Cf. Spivey v. Doria, No. 91 C 4169, 1994 WL 97756, at *10, 1994 U.S. Dist. LEXIS 3527, at *32 (N.D.Ill. Mar. 24, 1994) (holding that pretrial detainee failed to allege constitutional violation where he \"alleged only that the lights and noise interfere[d] with his sleep not that he [wa]s unable to sleep or that the sleep deprivation ha[d] caused him any harm”). . But see Jones v. Goord, 435 F.Supp.2d 221, 237 (S.D.N.Y.2006) (evidence that several inmates urinated on, rather than in, the toilet reflected \"isolated incidents of misbehavior, or simple inaccuracy, [that] do not signify a structural lack of proper hygiene as a result of double-celling”). . Further, the principal cases cited by defendants on appeal were decided after development of the facts on motions for" }, { "docid": "22161946", "title": "", "text": "jacket inflicted pain of a constitutional magnitude. Most important, he does not clearly indicate the clothing that he did have. We conclude that Walker has not raised a genuine issue of material fact that he was denied adequate clothing under the Eighth Amendment, and we affirm the grant of summary judgment in favor of the prison officials on this claim. C Walker argues that the district court improperly dismissed the claims against Housewright because Walker failed to serve process within 120 days of filing the complaint. Process was served on all defendants but Housewright by the United States Marshal. When service was not effectuated to House-wright within 120 days, the district court ordered Walker to show cause why House- wright should not be dismissed. Walker responded that he requested the marshal to serve Housewright along with the other defendants. Walker, however, presented no evidence other than his own statement in support of this assertion. The district court concluded that Walker had not shown cause, and dismissed the claim. Dismissal for failure to serve within 120 days of filing is reviewed for an abuse of discretion. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir.1990). In cases involving plaintiffs proceeding in forma pauperis, the United States Marshal, upon order of the court, is authorized to serve the summons and the complaint. See 28 U.S.C. § 1915(c); Boudette v. Barnett, 923 F.2d 754, 757 (9th Cir.1991). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties_” Puett, 912 F.2d at 275. So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service “is automatically good cause within the meaning of Rule 4(j).” Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990) (internal quotations omitted). Here, Walker did not prove that he provided the marshal with sufficient information to" }, { "docid": "22478022", "title": "", "text": "v. Sheahan, 81 F.3d at 1426 (“The Marshals Service’s failure to complete service [as required by statute], once furnished with the necessary identifying information, is automatically ‘good cause’ _” (emphasis added)); Graham v. Satkoski 51 F.3d at 713 (same). We conclude that Lindsey’s inability to properly serve the United States was attributable in large part to the clerk’s failure to provide Lindsey with the proper summons form and the district court’s failure to follow controlling statutes which required the court to appoint a United States Marshal or other person or officer appointed by the court to effectuate service for Lindsey. Neither of these contingencies were within Lindsey’s control. In view of our determination that dismissal of Lindsey’s complaint was imprudent, we conclude that a remand for further proceedings is appropriate. The judgment of the district court is VACATED and REMANDED for proceedings consistent with this opinion. . Lindsey apparently combined the address of the civil process clerk at the AUSA’s office with the address for the AUSA's office itself. He did not provide the name of the person who was to be served. . The United States Supreme Court and this Circuit have recently held that the 1993 amendments to Rule 4 also permit a court to extend the time for service even if no good cause is shown. See Henderson v. United States, — U.S. —, —, 116 S.Ct. 1638, 1643, 134 L.Ed.2d 880 (1996); Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.1996). Because we hold that Lindsey has made a showing of good cause, we need not address the question of whether Lindsey is entitled to relief absent a showing of good cause. . We proceeded under the 1987 version of Rule 4(c)(2)(B) (which is now Rule 4(c)(2)). 828 F.2d at 1109 n. 1. . See Byrd v. Stone, 94 F.3d at 219-20 (clerk of court and Marshals Service); Antonelli v. Sheahan, 81 F.3d 1422, 1426 (7th Cir.1996) (Marshals Service); Graham v. Satkoski, 51 F.3d 710, 712-13 (7th Cir. 1995) (same); Lujano v. Omaha Pub. Power Dist., 30 F.3d 1032, 1033-35 (8th Cir.1994) (Magistrate Judge); Dumaguin v." }, { "docid": "23668853", "title": "", "text": "to extend the 120-day time period by authorizing the court “to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.” Rule 4 Advisory Committee Notes (1993). Thus, under Rule 4(m), if the district court concludes there is good cause for plaintiffs failure to serve within 120 days, it shall extend the time for service. If plaintiff fails to show good cause, the court still may extend the time for service rather than dismiss the ease without prejudice. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995); Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). Plaintiffs argue that their diligent inquiries and prompt filing of an amended complaint satisfy Rule 4(m)’s good cause standard. A showing of good cause requires at least “excusable neglect” — good faith and some reasonable basis for noneompliance with the rules. See Lujano v. Omaha Public Power Dist., 30 F.3d 1032, 1035 (8th Cir.1994); Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 282-83 (D.C.Cir.1992). When counsel has ample notice of a defect in service, does not attempt an obvious correction, and chooses to defend the validity of the service attempted, there is no good cause for the resulting delay if that method of service fails. See Traina v. United States, 911 F.2d 1155, 1157 (5th Cir.1990). Here, for one year plaintiffs ignored reliable sources of corporate structure information, such as the Kansas Secretary of State, and refused either to act on the information provided in the Christie affidavits, or to look behind that information through discovery. Even when the Kansas Corporate Annual Reports and information provided by an AlliedSignal public relations office confirmed the Christie affidavits, plaintiffs stubbornly refused to take the obvious step of moving for leave to add King Radio as a named defendant. Thus, plaintiffs’ insufficiency of service was willful, not inadvertent. We cannot conclude that the district court abused its discretion in finding no good cause for the resulting delay. See Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985) (standard of review). Alternatively, plaintiffs" }, { "docid": "22914415", "title": "", "text": "with legal mail sufficient to state a First Amendment claim). Moreover we note that Mr. Rowe’s due process arguments based on the mandatory language of Indiana statutes and prison regulations'are foreclosed by the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). We now turn our attention to Mr. Rowe and Dr. Lant’s arguments concerning the district court’s dismissal of Dr. Lant’s First Amendment claim. They contend that Dr. Lant asserted his own First Amendment rights, giving him standing to sue. They further argue that the district court should not have dismissed Dr. Lant’s claims without service being made upon the defendants because Dr. Lant is not a prisoner. As to their standing argument, non-prisoners do indeed have a First Amendment right to correspond with prisoners. See Thornburgh, 490 U.S. at 407, 109 S.Ct. 1874; Procunier v. Martinez, 416 U.S. 396, 408-09, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459; Montcalm Publ’g Co. v. Beck, 80 F.3d 105, 108 (4th Cir.1996). The government’s unjustifiable interference with correspondence violates the First Amendment rights of both the recipient and the sender. Procunier, 416 U.S. at 408-09, 94 S.Ct. 1800. Thus, the district court erred in ruling that Dr. Lant lacked standing because he did not assert his own First Amendment rights. With respect to their other argument regarding the failure to serve the defendants, district courts have the power to screen complaints filed by all litigants, prisoners and non-prisoners alike, regardless of fee status. 28 U.S.C. § 1915(e)(2)(B); McGore, 114 F.3d at 608. The district court may screen the complaint prior to service on the defendants, and must dismiss the complaint if it fails to state a claim. 28 U.S.C. § 1915(e)(2)(B). Because Dr. Lant, like Mr. Rowe, failed to state a First Amendment claim, dismissal prior to service on the defendants was proper. Id.; Sizemore, 829 F.2d at 610. Accordingly, the district court’s judgment is affirmed. AjFFIRMED . Although the Tenth Circuit disfavors citation of unpublished opinions, they" }, { "docid": "23551940", "title": "", "text": "defendant Kelly moved for summary judgment. Soon thereafter, Wright moved, pursuant to Fed. R.Civ.P. 60(b), to vacate the district court’s ruling dismissing the complaint against Sel-sky and Kihl on immunity grounds. The parties agreed to proceed to a final district court determination before Magistrate Judge Foschio, pursuant to 28 U.S.C. § 636(e), with an appeal to be taken directly to the Second Circuit. Subsequently, in a decision and order dated March 18, 1996, Magistrate Judge Foschio held that Wright had not alleged a constitutional violation, granted Kelly’s mo tion for summary judgment, and denied plaintiffs motion to vacate Judge Skretny’s order as to Selsky and Kihl. Wright appeals from that ruling. On appeal, Wright argues that the district court erred in not considering duration as a factor in determining whether his confinement constituted an “atypical and significant” hardship and that the district court improperly credited the testimony of defendant Kelly in granting his summary judgment motion. II. DISCUSSION Plaintiff contends that the district court erred in finding as a matter of law that the disciplinary confinement to which he was subject, consisting of 168 days confinement in the SHU and 120 days in keeplock confinement, was not an “atypical and significant hardship” under Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). In Sandin, the Supreme Court altered the landscape of prisoner due process, constructing a new approach for analyzing claims of prisoners who are segregated from the prison population. To establish a due process violation, it is necessary to prove that the state has created a protected liberty interest and that the process due was denied. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996). To identify a protectable liberty interest under the Sandin framework, prisoners must establish that a given restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 482, 115 S.Ct. at 2300. Sandin articulated relevant factors which" }, { "docid": "22926052", "title": "", "text": "obtain information through governmental channels and needless attendant delays in litigating a case result. Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir.1995). The Graham court vacated the district court’s Rule 4(m) dismissal and remanded the case for a determination whether the Marshal service could have obtained the new addresses of the prison-guard defendants with reasonable effort. If so, their failure to do so would automatically have constituted “good cause” under Rule 4(m). We find this reasoning persuasive. It is unreasonable to expect incarcerated and unrepresented prisoner-litigants to provide the current addresses of prison-guard defendants who no longer work at the prison. Thus, we conclude that, as long as the court-appointed agent can locate the prison-guard defendant with reasonable effort, prisoner-litigants who provide enough information to identify the prison-guard defendant have established good cause for Rule 4(m) purposes. We therefore vacate the district court’s dismissal of Richardson’s claim against McNealy and remand to the district court for a determination whether McNealy can be located with reasonable effort. If so, McNealy must be served; otherwise, the district court properly dismissed Richardson’s claim against McNealy. C. Motion for Reconsideration Finally, Richardson argues that the court erred in denying his motion for reconsideration. We review the denial of a motion for reconsideration for an abuse of discretion. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.2001). A motion for reconsideration cannot be used “to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir.2005). Insofar as Richardson’s motion for reconsideration can be construed to concern defendants other than McNealy, we conclude that the district court did not abuse its discretion in denying the motion: Richardson’s motion simply attempted to relitigate old matters and present evidence that could have been raised prior to the entry of judgment. With regard to McNealy, however, we vacate the district court’s denial because the district court abused its discretion in failing to determine whether Richardson had established good cause under Rule 4(m). III." }, { "docid": "23625358", "title": "", "text": "the absence of a showing of good cause.” Horenkamp, 402 F.3d at 1132. Section 1915, entitled “Proceedings in forma pauperis,” instructs that “[t]he officers of the court shall issue and serve all process, and perform all duties in such cases.” 28 U.S.C. § 1915(d) (emphasis added). Federal Rule of Civil Procedure 4(c), likewise, requires that “[t]he court must so order [service to be made by a United States Marshal or deputy marshal] if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 ----” Fed.R.CivP. 4(c)(3). “Together, Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the proposition that when a plaintiff is proceeding in forma pauperis the court is obligated to issue plaintiffs process to a United States Marshal who must in turn effectuate service upon the defendants, thereby relieving a plaintiff of the burden to serve process once reasonable steps have been taken to identify for the court the defendants named in the complaint.” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). See also Graham v. Satkoski 51 F.3d 710, 712 (7th Cir.1995) (“The Marshals Service is required to serve process on behalf of individuals proceeding in for-ma pauperis.”). III. Our sister circuits have held that a plaintiff has shown “good cause” for purposes of a dismissal pursuant to Rule 4(m) when a United States Marshal has failed to properly serve process through no fault of the plaintiff. See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986) (finding “good cause” and holding that the district court erred in dismissing a pro se inmate’s case proceeding informa pauper-is for failure to effect service “because the U.S. Marshal had yet to effect personal process through no fault of the litigant”); Rochon v. Daivson, 828 F.2d 1107, 1110 (5th Cir.1987) (holding “that a plaintiff proceeding in forma pauperis is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal’s Service to properly effect service of process, where such failure is through no fault of the litigant”); Puett v. Blandford, 912 F.2d 270, 275 (9th" }, { "docid": "22168785", "title": "", "text": "RIPPLE, Circuit Judge. Michael Antonelli, proeéeding pro se, filed a complaint against several officers and officials of the Cook County Department of Corrections, alleging violations of his constitutional rights while an inmate at the Cook County Jail. 42 U.S.C. §' 1983. The district court granted the defendants’ motion to dismiss. Antonelli v. Sheahan, 863 F.Supp. 756 (N.D.Ill.1994). Mr. Antonelli appeals this judgment. We affirm in part, and reverse and remand in part. I We turn first to Mr. Antonelli’s submission that Officers Peterson and Hernandez were dismissed improperly from the litigation. Mr. Antonelli’s claims against persons identified in his complaint as “Officer Peterson” and “Officer Hernandez” were dismissed for failure to serve these defendants within 120 days after the filing of the complaint, as required by Federal Rule of Civil Procedure 4(m) (formerly Rule 4(j)). An inmate proceeding in forma pauperis (as Mr. Antonelli was) may rely on the Marshals Service to serve process. Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990). The inmate need furnish “no more than the information necessary to identify the defendant.” Id. The Marshals Service’s failure to complete service, once fumishéd with the necessary identifying information, is automatically “good cause” requiring an extension of time under Rule 4(m). Id; Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir.1995). In the instant case, the process receipts show that Mr. Antonelli did provide some specific information: not only the officers’ last names, but also their specific place of work (“Post 78, Division 1, Cook County Jail”). However, the Marshals Service reported that more than one person with the last names Peterson and Hernandez were employed “here.” What the Marshals Service meant by “here” is uncertain: If proper service was attempted, “here” would be the specific post described by Mr. Antonelli. In light of our decision infra that some claims are properly stated against Officers Peterson and Hernandez, we conclude that a remand for evaluation is appropriate. See Graham, 51 F.3d at 712-13 (remanding for evaluation by the district court, stating that the district court’s failure to “question the marshals’ efforts” and its dismissal of defendants" } ]

[ { "docid": "1932945", "title": "", "text": "benefits whatsoever. In similar cases the argument has been made that the contract is an executory contract (requiring the performance of both parties) which is to be accepted or rejected by the Debtor postpetition; if it is accepted, it results in a postpetition contract which cannot be offset against prepetition debts. In this regard, the Debtors rely on Walat Farms, Inc. v. United States (In re Walat Farms, Inc.), 69 B.R. 529 (Bankr.E.D.Mich.1987). In the alternative, the Debtors assert that they are entitled to the cost of producing the crop including reasonable compensation for their own labor. They also assert that allowing the FmHA to offset its debt against the Debtors’ ASCS payments would constitute a preference. Discussion Offset Subject to a few exceptions, § 553 of the Bankruptcy Code allows a creditor to offset a mutual debt owing by such creditor to the Debtor that arose before the commencement of the case against a claim of such creditor against the Debtor that arose before the commencement of the case. The Debtors acknowledge that the United States Government may setoff funds owed by one agency in order to collect debts owed to other agencies. Cherry Cotton Mills v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed.2d 835 (1946). The FmHA acknowledges that if the contract between the Debtors and CCC had been finalized after the filing of the Bankruptcy Petition, setoff would not be proper. The United States District Court for the Northern District of Texas faced this issue in Parrish and Waldron, supra. In both instances, the proceeds of the prepetition contract were subject to offset. The Parrish Court found “well-reasoned and persuasive” the decision of the Minnesota District Court in Moratzka v. United States (In re Matthieson), 63 B.R. 56 (D.Minn.1986). Matthieson involved ASCS deficiency payments and determined that they were prepetition obligations subject to set-off because the contract in question was entered into prepetition. “Where an obligation exists prior to bankruptcy, it is irrelevant that the exact amount of liability will not be determined until after the bankruptcy petition was filed.” Matthieson, supra at 59." } ]

[ { "docid": "1105551", "title": "", "text": "when they entered into the contract. Moratzka v. United States Agricultural Stabilization and Conservation Service (In re Matthieson), 63 B.R. 56 (D.Minn.1986) controls the result in the case at bar. In Moratzka, debtors enrolled in the Federal Crop Deficiency Program which provided payments to debtors based on end-of-the-year market prices in exchange for debtors’ promises to refrain from planting crops on certain acreage and to maintain soil conservation practices on unused acreage. Prior to filing their bankruptcy petitions, debtors each had an outstanding debt owing to the government. The question before the court was whether the payments owing debtors under the federal program represented a prepetition claim subject to offset by the government. Debtors in Moratzka argued that, because they had to satisfy several conditions postpetition in order to qualify for the payments, and because the payment amount could not be determined prepetition, the government’s obligation occurred postpetition and thus could not be offset. The court in Moratzka ruled that the federal payments represented a prepetition obligation allowing offset. Moratzka, 63 B.R. at 60. The court held that mutual obligations were created prepetition when the contract was formed. Id. The court further held that the fact that debtors could be assessed liquidated damages for failing to fulfill contractual conditions post-petition did not prevent setoff. Id. In the case at bar debtors argue that the facts in Moratzka were substantially distinct from those present here. Debtors characterize the compliance duties of the debtors in Moratzka as minimal in comparison to their ten-year commitment to anti-erosion procedures. As suggested by ap-pellees, this is a distinction without a difference. Regardless of the length of the contract, the parties assumed similar obligations which were determined prepetition at the time the parties formed the contract. Debtors also argue that Moratzka is inapplicable because it involved chapter 7 petitions and did not deal with a reorganization. Citing Walat Farms, Inc. v. United States, 69 B.R. 529, 531-32 (Bankr.E.D.Mich.1987), debtors contend that the Moratzka contract was necessarily prepetition because it was rejected by operation of law and rejected executory contracts are deemed to be prepetition claims. The" }, { "docid": "18890775", "title": "", "text": "agency’s debt to debtor arose pre-petition, 70 B.R. at 371. The Woloschak Farms case involved disaster relief payments for which final approval of the debt- or’s claim had been obtained before debtor filed its bankruptcy petition. 74 B.R. at 264. Thus, the debtor’s right to receive the payments arose before the case was commenced, even though actual payment occurred after the filing. Id. FmHA’s reliance on Brooks Farms and Woloschak Farms to support the Matthieson finding appears to be misplaced. In urging this Court to find the CCC Payments to be post-petition in nature, Debtors rely upon Hill v. Farmers Home Admin. (In re Hill), 19 B.R. 375 (Bankr.N. D.Tex.1982), and Walat Farms, Inc. v. United States ex rel. U.S. Dept. of Agric. (In re Walat Farms, Inc.), 69 B.R. 529 (Bankr.E.D.Mich.1987). Although Hill, which held ASCS payments to be post-petition, has apparently been overruled sub silento in In re Buske, 75 B.R. 213 (Bankr. N.D.Tex.1987), Walat Farms does provide support for Debtors’ argument that the payments at issue are post-petition. The agreement between Walat Farms, Inc., and CCC was characterized as exec-utory because a number of the duties required by the agreement were substantially unperformed at the time that debtor filed its Chapter 11 petition. 69 B.R. at 531. Pursuant to 11 U.S.C.A. §§ 365(a) & (d)(2), prior to confirmation and subject to court approval, such an executory contract could be assumed or rejected by a Chapter 11 debtor-in-possession. Id. at 534. Upon assumption of the contract CCC would then, owe the debt which arose under the contract to the debtor-in-possession, rather than the pre-petition debtor. Id. Under this analysis, the debtor's right to any payment from CCC could only arise post-petition, upon proper assumption and performance of the contract by the debtor-in-possession. Id. Section 553’s requirement of a pre-petition debt owed by the creditor to the debtor would thus not be met. Id. The Matthieson holding was distinguished by the Walat Farms court. The basis for the distinction was that Matthie-son was a Chapter 7 case and did not address executory contracts in a reorganization context. Id. at" }, { "docid": "18890774", "title": "", "text": "Bank (In re Greseth), 78 B.R. 936 (D.Minn.1987) to support its contention that the ASCS/CCC monies potentially due Debtor are pre-petition in nature. Matthie-son is a Chapter 7 case holding the ASCS contract requirements to be contractual duties and promises rather than conditions precedent to payment, thus pre-petition obligations. 63 B.R. at 60. The Greseth court followed the Matthieson court’s holding, even though urged to distinguish the Chapter 12 debtors’ ten-year commitment to ASCS from the alleged lesser duties owed by the Matthieson debtors. 78 B.R. at 942. The cases of Brooks Farms v. United States Dept. of Agric. (In re Brooks Farms, 70 B.R. 368 (Bankr.E.D.Wisc.1987) and In re Woloschak Farms, 74 B.R. 261 (Bankr.N.D.Ohio 1987), are cited as supporting the finding in Matthieson. However, while Brooks Farms and Woloschak Farms may have allowed offset of ASCS/CCC entitlement payments, neither case is directly on point with Matthieson, nor with the facts before this Court. In Brooks Farms, all contract requirements had been fulfilled prior to the debt- or’s bankruptcy filing, clearly establishing that the agency’s debt to debtor arose pre-petition, 70 B.R. at 371. The Woloschak Farms case involved disaster relief payments for which final approval of the debt- or’s claim had been obtained before debtor filed its bankruptcy petition. 74 B.R. at 264. Thus, the debtor’s right to receive the payments arose before the case was commenced, even though actual payment occurred after the filing. Id. FmHA’s reliance on Brooks Farms and Woloschak Farms to support the Matthieson finding appears to be misplaced. In urging this Court to find the CCC Payments to be post-petition in nature, Debtors rely upon Hill v. Farmers Home Admin. (In re Hill), 19 B.R. 375 (Bankr.N. D.Tex.1982), and Walat Farms, Inc. v. United States ex rel. U.S. Dept. of Agric. (In re Walat Farms, Inc.), 69 B.R. 529 (Bankr.E.D.Mich.1987). Although Hill, which held ASCS payments to be post-petition, has apparently been overruled sub silento in In re Buske, 75 B.R. 213 (Bankr. N.D.Tex.1987), Walat Farms does provide support for Debtors’ argument that the payments at issue are post-petition. The agreement between Walat" }, { "docid": "9613923", "title": "", "text": "never any transfer involved. The two promissory notes signed by the debtor in connection with the government corn storage loans specified that the obligations were “payable to the order of CCC.” Likewise, the Com Deficiency Program agreement specifically declared that CCC (not ASCS or any other party) was responsible for payment under that program. The third exception, § 553(a)(3), is intended to be invoked where a debt was incurred within 90 days before the filing of the Chapter 11 petition, while the debtor was insolvent and for the purpose of obtaining a right of setoff against the debtor. In this case, as has been previously noted, the debt was clearly pre-Chapter 11. Based upon the particular facts involved, the date when it was determined that the deficiency payment was due may have been within the 90 day pre-petition period, if the court should find that CCC’s debt was incurred either when the deficiency calculation was made or when the setoff was applied. However, neither of these findings would bring this case within § 553(a)(3). In re Newell, (Bky. 3-85-455, Bankr.Minn.1985), In re Matthieson, 63 B.R. 56 (D.Minn.1986) and In re Isis Foods, Inc., 24 B.R. 75 (Bankr.W.D.Mo.1982), are authority for the proposition that a debt is incurred as of the inception date of the contract, even though the debt was not at that time either due or liquidated. That principle applied to the instant case compels a finding that CCC’s debt was incurred more than 90 days before the filing of the Chapter 11 petition. For the sake of argument only, even if the court accepted the premise that CCC’s debt was incurred within the 90 day pre-pe-tition period, there is nothing in the record to suggest that this debt was created for the purpose of obtaining a right of setoff against the debtor. § 553(a)(3) is intended to eliminate an opportunity for a creditor to engage in some form of manipulation at the expense of other creditors. Here, it was the debtor, not CCC, who initiated the application under the Corn Deficiency Program. Accordingly, the § 553(a)(3) exception must" }, { "docid": "1092570", "title": "", "text": "because the “contract requirements [were] in the nature of contractual duties and promises rather than conditions precedent.” 63 B.R. at 59. Hence, Mat-thieson concluded that the obligation of CCC to pay the debtor arose prepetition, was mutual with the debtor, and, therefore, that CCC could exercise a setoff. Id. at 59-60. The Greseth court reaffirmed the Matthieson rationale in the context of a Chapter 12 reorganization case. Greseth, 78 B.R. at 942. A number of other courts specifically have adopted the Matthieson and Greseth rationale in similar cases. In re Affiliated Food Stores, Inc., 123 B.R. 747, 748-49 (Bankr.N.D.Tex.1991); In re Lundell Farms, 86 B.R. 582, 586-88 (Bankr.W.D.Wis.1988); Buske v. McDonald v. United States (In re Buske), 75 B.R. 213, 215-16 (Bankr.N.D.Tex.1987); United States, Farmers Home Admin. v. Parrish (In re Parrish), 75 B.R. 14, 16 (N.D.Tex.1987); see also Pinkert v. FmHA (In re Pinkert), 75 B.R. 218, 220-21 (Bankr.N.D.Tex.1987). Most of the cases following the Matthie-son rationale specifically have declined to follow, or found less persuasive, the Walat Farms rationale. See, e.g., Affiliated Food Stores, 123 B.R. at 748 n. (declining to follow (Walat Farms); Lundell Farms, 86 B.R. at 586-88; (finding Matthieson more persuasive); Greseth, 78 B.R. at 942 (following Matthieson instead of Walat Farms). Conversely, the Walat Farms court and those following its rationale either have declined to follow Matthieson or attempted to distinguish its holding. See, e.g., Evatt, 112 B.R. at 420 n. 5 (district court agrees with bankruptcy court’s determination that Matthieson case distinguishable); Evatt, 112 B.R. at 411 (bankruptcy court distinguishes Matthieson); Walat Farms, 69 B.R. at 531-32 (distinguishing and limiting Matthieson). The main reason that Walat Farms and other courts have given for distinguishing Matthieson is that Matthieson did not discuss the exec-utory contract rationale provided in Walat Farms. The Walat Farms court, and others following its authority, observed that: Matthieson dealt with Chapter 7 cases. The case did not deal with executory contracts in a Chapter 11 setting, and therefore the opinion properly did not discuss the issue. Apparently this was because, pursuant to § 365(d)(1), the pre- petition contracts were not" }, { "docid": "1105550", "title": "", "text": "of the setoff. Order at 4-5. Debtors appeal this holding. Title 11 U.S.C. § 553(a) allows a creditor “to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against debtor that arose before the commencement of the case.” Thus a creditor may offset debts that are mutual and prepetition. Michigan Consolidated Gas Co. v. Fred Sanders Co. (In re Fred Sanders Co.), 33 B.R. 310, 311 (Bankr.E.D.Mich.1983). Debtors argue that, because their CRP contract requires them to actively comply with its terms for ten years in order to continue receiving payments, the right to receive the payments arises post-petition. Debtors assert that if they fail to comply with program requirements at any time, they must refund all payments received. Debtors thus argue that ASCS may not offset the payments since they do not relate to a prepetition claim. Appellees endorse the bankruptcy court’s holding, and contend that the benefits of the CRP contract accrued to debtors when they entered into the contract. Moratzka v. United States Agricultural Stabilization and Conservation Service (In re Matthieson), 63 B.R. 56 (D.Minn.1986) controls the result in the case at bar. In Moratzka, debtors enrolled in the Federal Crop Deficiency Program which provided payments to debtors based on end-of-the-year market prices in exchange for debtors’ promises to refrain from planting crops on certain acreage and to maintain soil conservation practices on unused acreage. Prior to filing their bankruptcy petitions, debtors each had an outstanding debt owing to the government. The question before the court was whether the payments owing debtors under the federal program represented a prepetition claim subject to offset by the government. Debtors in Moratzka argued that, because they had to satisfy several conditions postpetition in order to qualify for the payments, and because the payment amount could not be determined prepetition, the government’s obligation occurred postpetition and thus could not be offset. The court in Moratzka ruled that the federal payments represented a prepetition obligation allowing offset. Moratzka, 63 B.R. at 60. The" }, { "docid": "18890772", "title": "", "text": "of setoff pursuant to federal regulations, Debtors point out that § 13.4(a) allows FmHA to defer, subordinate or withdraw its request for setoff where a determination has been made that the agency’s best interests would be served by such action. Debtors’ Brief at 4. A convincing argument is made by Debtors that it is in the best interests of the Department of Agriculture to administer its programs in such a way as to foster Congress’ intent not to subject family farm operations to unfair economic disadvantage. Id. at 4-5. However, FmHA has not offered to defer, subordinate or withdraw its request for setoff pursuant to § 13.4(a). Section 13.4(a) appears to be permissive rather than mandatory, and the Court is unwilling to require FmHA to take any such action with regard to its request for setoff. B. Elements of 11 U.S.C.A. § 553 Once an independent right of setoff has been established, the three elements set forth in § 553 must be satisfied before a setoff can be effected against a debtor’s obligation. First, a debt must be owed by the creditor to the debtor, which debt must have arisen before the debtor commenced his bankruptcy proceeding. Second, the creditor must have a claim against the debtor, which claim must also have arisen before the bankruptcy case was commenced. Last, the obligations must be mutual. These requirements, as well as other related matters, are considered separately below. I. Pre-Petition Debt Owed by Creditor to Debtor The first requirement of § 553 is that a debt must be owed by FmHA to Debtors, and the debt must have arisen before July II, 1988, the date Debtors filed their Chapter 12 petition. There is no dispute among the parties that ASCS/CCC may owe a presently undetermined amount of money to Debtor. The disputes arise regarding whether FmHA and ASCS/CCC are the same entity for setoff purposes, and whether the debt arose before commencement of Debtors’ bankruptcy proceeding. FmHA relies primarily upon Moratzka v. United States Agric. Stabilization and Conservation Serv. (In re Matthieson), 63 B.R. 56 (D.Minn.1986) and Greseth v. Federal Land" }, { "docid": "1092569", "title": "", "text": "both mutuality and the pre-petition nature of the contract. The debtor urges the Court to adopt this rationale here and refuse to allow CCC to setoff. CCC, on the other hand, argues that the Court should not follow the Walat Farms line of authority. CCC argues that the Court instead should allow the setoff by following a line of cases which rejects Walat Farms. The line of cases CCC relies on originated in two cases from the District of Minnesota: Moratzka v. United States of America; Agricultural Stabilization and Conservation Service (In re Matthieson), 63 B.R. 56 (D.Minn.1986) and Greseth v. Federal Land Bank of St. Paul (In re Greseth), 78 B.R. 936 (D.Minn.1987). In Matthieson and Greseth the District of Minnesota found that CCC’s obligation to pay debtors was subject to setoff against CCC’s claim against the debtor because CCC’s obligation to pay arose prepetition and the obligation was mutual at that time. Matthieson, 63 B.R. at 60; Greseth, 78 B.R. at 942. Matthieson, which Greseth relied on, reasoned that the debts arose prepetition because the “contract requirements [were] in the nature of contractual duties and promises rather than conditions precedent.” 63 B.R. at 59. Hence, Mat-thieson concluded that the obligation of CCC to pay the debtor arose prepetition, was mutual with the debtor, and, therefore, that CCC could exercise a setoff. Id. at 59-60. The Greseth court reaffirmed the Matthieson rationale in the context of a Chapter 12 reorganization case. Greseth, 78 B.R. at 942. A number of other courts specifically have adopted the Matthieson and Greseth rationale in similar cases. In re Affiliated Food Stores, Inc., 123 B.R. 747, 748-49 (Bankr.N.D.Tex.1991); In re Lundell Farms, 86 B.R. 582, 586-88 (Bankr.W.D.Wis.1988); Buske v. McDonald v. United States (In re Buske), 75 B.R. 213, 215-16 (Bankr.N.D.Tex.1987); United States, Farmers Home Admin. v. Parrish (In re Parrish), 75 B.R. 14, 16 (N.D.Tex.1987); see also Pinkert v. FmHA (In re Pinkert), 75 B.R. 218, 220-21 (Bankr.N.D.Tex.1987). Most of the cases following the Matthie-son rationale specifically have declined to follow, or found less persuasive, the Walat Farms rationale. See, e.g., Affiliated Food" }, { "docid": "1127951", "title": "", "text": "of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case.... The Debtors argue that even though the CCC contracts were entered into before the filing of the Chapter 12 case, all payments arise post-petition. Thus, the Debtors assert that the debt “owed” by CCC under the contracts did not arise “before the commencement of the” Chapter 12 case, and cannot be offset. The right of the government to setoff in contracts of this type was dealt with by the bankruptcy court in the case of Matter of Matthieson, 63 B.R. 56 (D.Minn.1986). The court there examined the terms of the contract between the debtors and the government and concluded that, pursuant to its terms, it created mutual obligations on the parties. In particular, the court concluded that: ... the obligations of ASCS under the deficiency program contracts arose at the time the contract was created and were thus pre-petition obligations subject to offset under 11 U.S.C. § 553. Ibid. at 60. The logic of the Matthieson case is applicable and compelling here. There is a further reason why the right of the FmHA to setoff the CRP payments must be honored. The CCC contract bears all the classic earmarks of an executory contract. Under its terms both parties have ongoing obligations — the government to pay rent and the Debtors to continue to implement the conservation programs. In re Harms, 10 B.R. 817 (Bankr.D.Colo.1981). In order to obtain the benefits promised under the contract, the Debtors must assume the contract. As the 10th Circuit Court of Appeals has observed: When an executory contract is involved, courts have reasoned that a debtor who assumes the favorable aspects of the contract (post-petition performance) also must take the unfavorable aspects of the same contract (obligation to repay pre-pe-tition overpayments). In re B & L Oil Co., 782 F.2d 155 (10th Cir.1986). So here, if the CCC contracts are assumed by" }, { "docid": "18902414", "title": "", "text": "set-off. The bankruptcy court’s Order denying FmHA’s motion for set-off of debts owed by the ASCS/CCC to the Debtor pursuant to “Agreements # 3-# 6,” the four contracts which are the subject of this appeal, is AFFIRMED. IT IS SO ORDERED. . Debtor Jerry Garland Evatt is the only signatory to the ASCS/CCC contracts. . The bankruptcy court granted the motion of the FmHA with respect to a debt owed by CCC to the Debtor for an overpayment by Debtor on a sixth contract, a Farm Storage Note and Security Agreement dated August 8, 1985. . The Court finds no evidence in the record of whether or when such form was filed. . Based on \"[p]rovisions for the timely assumption [of] Agreements # 2-# 6 within Debtors’ plan of reorganization,” the bankruptcy court found that the debtor-in-possession intended to assume and complete performance of those contracts. Order Denying in Part and Granting in Part Setoff of entitlement Payments at p. 11. Appellant does not challenge that finding or raise any issue concerning the timing or effectiveness of assumption of the contracts. . The Court agrees with the bankruptcy court that the cases of Moratzka v. United States Agriculture Stabilization and Conservation Service (In re Matthieson), 63 B.R. 56 (D.Minn.1986); Greseth v. Federal Land Bank (In re Greseth), 78 B.R. 936 (D.Minn.1987); Brooks Farm v. United States Department of Agriculture (In re Brooks Farms), 70 B.R. 368 (Bankr.E.D.Wis.1987); and In re Woloschak Farms, 74 B.R. 261 (Bankr.N.D. Ohio 1987), vacated on other grounds, 109 B.R. 736 (N.D. Ohio 1989), cited by the FmHA below, are distinguishable for essentially the reasons cited by the bankruptcy court. See Order Denying in Part and Granting in Part Setoff of Entitlement Payments at pp. 9-12. In none of those cases did the court address the issue of whether the contract was executory where the contract gave the government the right to declare the Debtor ineligible for benefits if the Debtors failed to comply with the terms and conditions of the contract. In the case of In re Ratliff, 79 B.R. 930, 933 (Bankr.D.Colo.1987), cited by" }, { "docid": "13839217", "title": "", "text": "“In addition to any refund required ... and in addition to assessing any liquidated damages ..., CCC reserves the right to consider any producer on a farm to be ineligible for any benefits under the contract when there is failure of any producer on the farm to comply with the terms and conditions of the contract.” If the Debtor did not perform, then ASCS-CCC would not be obligated to issue the commodity certificates in question. Accordingly, when the Debtor in possession assumes the contract and completes performance, the Debtor in possession as trustee and not as the debtor has the right to payment. That payment accrues post-petition and is not subject to setoff under section 553. This Court is persuaded that the Walat Farms decision is correct on this point. 69 B.R. at 531. The main decision holding to the contrary is In re Matthieson, 63 B.R. 56 (D.Minn. 1986). In Matthieson, a Chapter 7 trustee objected to the setoff of 1984 final deficiency payments the amount of which could not be determined until after the debtors filed their petitions. The opinion does not indicate that the ASCS had the option to “consider any producer ineligible” for the failure to perform as the contract under consideration here provides. Thus, under the Matthieson facts, the ASCS’s liability to the debtor farmers was fixed, but the amount was unliquidated. The Matthieson holding was also contrary to In re Hill, 19 B.R. 375 (Bankr.N.D.Tex.1982). In Hill, the court held that when the deficiency cannot be calculated until after the bankruptcy petition is filed, then the payment is a post-petition'payment that cannot be offset. Like Matthieson, the Hill facts indicate that the liability of ASCS was fixed, but only the amount due remained to be calculated (which could be zero). The Braniff Airways holding supports the Mat-thieson result, but only where the liability is fixed, i.e. where the debt is “absolutely owed.” The Matthieson opinion did not focus upon the executory nature of the contracts (making the liability of ASCS-CCC contingent on assumption and performance post-petition). “Apparently this was because, pursuant to sec. 365(d)(1)," }, { "docid": "18890795", "title": "", "text": "the arguments presented therein should not be considered. The Court notes that all parties, including FmHA, agreed to allow the filing of the Amicus Brief. Thus, the Amicus Brief was included among the materials considered in arriving at this decision. . These regulations allow, upon satisfaction of certain conditions, setoff of \"amounts approved by Agricultural Stabilization and Conservation county committees for disbursement to [program participants] ... against debts of such [participants] owing to any department or agency of the United States.” 7 C.F.R. § 13.1. .That section provides \"[i]n case of indebtedness subject to setoff ... the head of any creditor agency of the Department of Agriculture ... may ... defer or subordinate in whole or in part, the right of the creditor agency to recover through setoff ... or may withdraw a request for setoff, if he determines that such action is in the best interest of ... such creditor agency ...\" 7 C.F.R. § 13.4(a) (emphasis added). . See infra pp. 412-13, where this issue is separately addressed. . The ASCS contract required debtor to satisfy certain set-aside requirements, maintain soil conservation practices, and file compliance reports. 63 B.R. at 58. . In the event of debtor’s failure to perform those duties, the contract provided CCC with damage remedies including the right to withhold payments, the right to require debtor to refund payments previously received, and the right to require debtor to pay liquidated damages. 69 B.R. at 531. .The cases cited by FmHA to support this contention are United States ex rel. Farmers Home Admin. v. Parrish (In re Parrish), 75 B.R. 14 (N.D.Tex.1987); Waldron v. Farmers Home Admin., 75 B.R. 25 (N.D.Tex.1987); Buske v. McDonald (In re Buske), 75 B.R. 213 (Bankr.N.D. Tex. 1987); Pinkert v. Farmers Home Admin. (In re Pinkert), 75 B.R. 218 (Bankr.N.D.Tex.1987); In re Ratliff, 79 B.R. 930 (Bankr.D.Colo.1987); and In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex. 1988). . See e.g. Parrish, 75 B.R. at 15; Buske, 75 B.R. at 216; and Pinkert, 75 B.R. at 220. In each of these cases, the debtors conceded that FmHA and ASCS/CCC are the same" }, { "docid": "13839216", "title": "", "text": "defined as “liability on a claim.” 11 U.S.C. sec. 101(11). A “claim” is the “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. sec. 101(4)(A). Using these terms, the Fifth Circuit’s Braniff Airways holding was that an unliquidated, unmatured claim could still be a pre-petition claim (and debt) if it is “absolutely” owed when the petition is filed. If a claim is “absolutely” owed, then it is “fixed” and no longer “contingent.” “Contingent” means “possible, but not assured; doubtful or uncertain; conditioned upon the occurrence of some future event which is itself uncertain, or questionable.” Black’s Law Dictionary, p. 169 (abridged 5th ed. 1983). A “contingent liability” is “one which is not now fixed and absolute, but which will become so in case of the occurrence of some future and uncertain event.” Id. The debt owed by ASCS-CCC to the Debtor was contingent on the Debtor’s performance through December 31, 1987. Paragraph 19 of the Appendix states: “In addition to any refund required ... and in addition to assessing any liquidated damages ..., CCC reserves the right to consider any producer on a farm to be ineligible for any benefits under the contract when there is failure of any producer on the farm to comply with the terms and conditions of the contract.” If the Debtor did not perform, then ASCS-CCC would not be obligated to issue the commodity certificates in question. Accordingly, when the Debtor in possession assumes the contract and completes performance, the Debtor in possession as trustee and not as the debtor has the right to payment. That payment accrues post-petition and is not subject to setoff under section 553. This Court is persuaded that the Walat Farms decision is correct on this point. 69 B.R. at 531. The main decision holding to the contrary is In re Matthieson, 63 B.R. 56 (D.Minn. 1986). In Matthieson, a Chapter 7 trustee objected to the setoff of 1984 final deficiency payments the amount of which could not be determined until after" }, { "docid": "1092568", "title": "", "text": "deficiency payment could only arise postpetition, and be owed to the debtor in possession ... and not the debtor.” Id. (emphasis added). Hence, the Walat Farms court concluded that the requisite mutuality under § 553 would not exist because the debtor and debtor-in-possession are different entities. Id. Walat Farms also indicates that the assumption makes the obligation of CCC “arise postpe-tition,’’ in contravention of the prepetition debt requirement of § 553(a). A number of courts explicitly have adopted the Walat Farms rationale. See, e.g., Small Business Admin. v. Gore (In re Gore), 124 B.R. 75, 77-78 (Bankr.E.D.Ark.1990); In re Evatt, 112 B.R. 405, 411-14 (Bankr.W.D.Okla.1989) aff'd 112 B.R. 417 (W.D.Okla.1990). All of these cases have noted that the assumption of the CRP contracts as executory contracts makes them postpetition contracts of the debtor where the debt is not absolutely owed prepetition. Gore, 124 B.R. at 78; Evatt, 112 B.R. at 419. Hence, Walat Farms and all of the cases adopting its rationale have found that assuming a CRP contract postpetition as an executory contract destroys both mutuality and the pre-petition nature of the contract. The debtor urges the Court to adopt this rationale here and refuse to allow CCC to setoff. CCC, on the other hand, argues that the Court should not follow the Walat Farms line of authority. CCC argues that the Court instead should allow the setoff by following a line of cases which rejects Walat Farms. The line of cases CCC relies on originated in two cases from the District of Minnesota: Moratzka v. United States of America; Agricultural Stabilization and Conservation Service (In re Matthieson), 63 B.R. 56 (D.Minn.1986) and Greseth v. Federal Land Bank of St. Paul (In re Greseth), 78 B.R. 936 (D.Minn.1987). In Matthieson and Greseth the District of Minnesota found that CCC’s obligation to pay debtors was subject to setoff against CCC’s claim against the debtor because CCC’s obligation to pay arose prepetition and the obligation was mutual at that time. Matthieson, 63 B.R. at 60; Greseth, 78 B.R. at 942. Matthieson, which Greseth relied on, reasoned that the debts arose prepetition" }, { "docid": "4735693", "title": "", "text": "contract is properly assumed by the debtor in possession, any right to á deficiency payment could only arise postpetition, and be owed to the debtor in possession ... and not the debt- or. Consequently, mutuality would not exist and setoff would be disallowed. Id. The court also indicated that assumption of the contract makes the obligations under the contract arise postpetition. See id. Cases following the Walat Farms’ rationale have held that when a debtor-in-possession assumes an executory contract (such as the CRP contracts), it becomes a postpetition contract in which the obligations under the contract arise postpetition. Those courts hold that assuming a CRP contract postpetition destroys both the mutuality requirement and the prepetition nature of the contract. Consequently, those cases hold that the requirements of § 553 are not met and that setoff is not permitted. In contrast, other courts have held that the government may exercise setoff against a debtor’s postpetition CRP payments. See, e.g., Gerth, 991 F.2d 1428 (2-1 decision; Hea-ney, J., dissenting) (ASCS entitled to set off its debt for CRP payments against its claims against debtor for certain prepetition debts debtor owed government) ; In re Allen, 135 B.R. 856 (Bankr.N.D.Iowa 1992) (government entitled to setoff debtor’s price support loan obligation against government’s obligation to debtor under CRP agreement); see also In re Mohar, 140 B.R. 273 (Bankr.D.Mont.1992) (siding with the court’s holding in In re Allen ). These eases have declined to follow Walat Farms and instead rely upon a contrary line of authority which adopts the reasoning found in Moratzka v. United States of America; Agricultural Stabilization and Conservation Serv. (In re Matthieson), 63 B.R. 56 (D.Minn.1986). In Matthieson, the ASCS sought to setoff deficiency payments owed by ASCS to Chapter 7 debtors against prepetition debts owed by each of the debtors to the government. The court found that ASCS’ obligation to pay the debtors under the deficiency program contracts was subject to setoff against the government’s claim against the debtors. The court held that ASCS’ obligations to pay the debtors arose at the time the deficiency program contracts were created and" }, { "docid": "4735694", "title": "", "text": "CRP payments against its claims against debtor for certain prepetition debts debtor owed government) ; In re Allen, 135 B.R. 856 (Bankr.N.D.Iowa 1992) (government entitled to setoff debtor’s price support loan obligation against government’s obligation to debtor under CRP agreement); see also In re Mohar, 140 B.R. 273 (Bankr.D.Mont.1992) (siding with the court’s holding in In re Allen ). These eases have declined to follow Walat Farms and instead rely upon a contrary line of authority which adopts the reasoning found in Moratzka v. United States of America; Agricultural Stabilization and Conservation Serv. (In re Matthieson), 63 B.R. 56 (D.Minn.1986). In Matthieson, the ASCS sought to setoff deficiency payments owed by ASCS to Chapter 7 debtors against prepetition debts owed by each of the debtors to the government. The court found that ASCS’ obligation to pay the debtors under the deficiency program contracts was subject to setoff against the government’s claim against the debtors. The court held that ASCS’ obligations to pay the debtors arose at the time the deficiency program contracts were created and those obligations were prepetition, mutual obligations subject to setoff under 11 U.S.C. § 553. 63 B.R. at 59-60. Analysis As a general observation, the recent trend of cases deciding the issue presented by this case have followed the court’s analysis in Matthieson, rejecting the analysis in Walat Farms. The court also notes that the only court of appeals to decide this issue has held that the ASCS may offset CRP payments, albeit that the decision was not unanimous. Based upon its understanding of the law, the court concludes that the better reasoned approach is found in those cases following the analysis in Matthieson. Specifically, the court is persuaded by the majority’s analysis in Gerth. “[M]ere assumption of an executory contract does not alter when the obligations under the contract arose.” Gerth, 991 F.2d at 1432; see In re Allen, 135 B.R. at 864. Moreover, when Buckner assumed the CRP contract he assumed both the benefits and the burdens of that contract. See id.; In re Godwin Bevers Co., Inc., 575 F.2d 805, 807 (10th Cir.1978)" }, { "docid": "18902415", "title": "", "text": "effectiveness of assumption of the contracts. . The Court agrees with the bankruptcy court that the cases of Moratzka v. United States Agriculture Stabilization and Conservation Service (In re Matthieson), 63 B.R. 56 (D.Minn.1986); Greseth v. Federal Land Bank (In re Greseth), 78 B.R. 936 (D.Minn.1987); Brooks Farm v. United States Department of Agriculture (In re Brooks Farms), 70 B.R. 368 (Bankr.E.D.Wis.1987); and In re Woloschak Farms, 74 B.R. 261 (Bankr.N.D. Ohio 1987), vacated on other grounds, 109 B.R. 736 (N.D. Ohio 1989), cited by the FmHA below, are distinguishable for essentially the reasons cited by the bankruptcy court. See Order Denying in Part and Granting in Part Setoff of Entitlement Payments at pp. 9-12. In none of those cases did the court address the issue of whether the contract was executory where the contract gave the government the right to declare the Debtor ineligible for benefits if the Debtors failed to comply with the terms and conditions of the contract. In the case of In re Ratliff, 79 B.R. 930, 933 (Bankr.D.Colo.1987), cited by Appellant, the bankruptcy court merely followed the Matthieson case in spite of its recognition that the contracts in question were executory contracts which the debtors had to assume to obtain the benefits thereunder. The case of In re Lundell Farms, 86 B.R. 582 (Bankr. W.D.Wis.1988), also cited by Appellant, is distinguishable because the court therein found that “there were no material obligations left to perform other than payment” and that \"every act related to setoff had been completed” at the time the bankruptcy petition was filed, and thus concluded that the contracts were not exec-utory. 86 B.R. at 588." }, { "docid": "1863848", "title": "", "text": "analogize this to the situation of an after-acquired property clause in a security agreement covering crops where crops planted postpetition are not covered by the prepetition after-acquired property clause. Lemley-Cabbiness Farms v. FDIC (In re Lemley), 65 B.R. 185 (Bankr.N.D.Tex.1986); First State Bank of Abernathy v. Holder (In re Nivens), 22 B.R. 287 (Bankr.N.D.Tex.1982). The Debtors distinguish United States v. Parrish (In re Parrish), Unpublished Opinion of November 12, 1986, Bankruptcy No. 585-50070, CA-5-86-191, United States District Court, Judge Halbert 0. Woodward on grounds that it related to a Chapter 7 proceeding. The Debtors do not dispute that the United States Government may setoff funds owed by one agency in order to collect debts owed to other agencies. Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed.2d 835 (1946). In Parrish, the District Court found “well-reasoned and persuasive” the decision of the United States District Court in Minnesota in Moratzka v. United States (In re Matthieson), 63 B.R. 56 (D.Minn.1986). Matthieson involved ASCS deficiency payments and held that they were pre-petition obligations subject to setoff because the contract in question was entered into prepetition. “Where an obligation exists prior to bankruptcy, it is irrelevant that the exact amount of liability will not be determined until after the bankruptcy petition was filed.” Matthieson, supra at 59 (citations omitted). The Debtors correctly assert that Mat-thieson involved several Chapter 7 cases. On the other hand, the Matthieson Court thoroughly reviewed and rejected the arguments of the prior Judge of this Court in Hill v. Farmers Home Administration (In re Hill), 19 B.R. 375 (Bankr.N.D.Tex.1982) wherein was raised the very issue before the Court at this time. Hill was a Chapter 11 proceeding and the Court concluded that disaster payments by ASCS were postpetition monies. The Court in Matthieson, having expressly rejected those arguments, and the Court in Parrish, having expressly adopted the reasoning in Matthieson, the law in this District is well-established and must be followed by this Court. The Debtors strongly urge this Court to follow Walat Farms, Inc. v. United States (In re Walat Farms," }, { "docid": "18890773", "title": "", "text": "debt must be owed by the creditor to the debtor, which debt must have arisen before the debtor commenced his bankruptcy proceeding. Second, the creditor must have a claim against the debtor, which claim must also have arisen before the bankruptcy case was commenced. Last, the obligations must be mutual. These requirements, as well as other related matters, are considered separately below. I. Pre-Petition Debt Owed by Creditor to Debtor The first requirement of § 553 is that a debt must be owed by FmHA to Debtors, and the debt must have arisen before July II, 1988, the date Debtors filed their Chapter 12 petition. There is no dispute among the parties that ASCS/CCC may owe a presently undetermined amount of money to Debtor. The disputes arise regarding whether FmHA and ASCS/CCC are the same entity for setoff purposes, and whether the debt arose before commencement of Debtors’ bankruptcy proceeding. FmHA relies primarily upon Moratzka v. United States Agric. Stabilization and Conservation Serv. (In re Matthieson), 63 B.R. 56 (D.Minn.1986) and Greseth v. Federal Land Bank (In re Greseth), 78 B.R. 936 (D.Minn.1987) to support its contention that the ASCS/CCC monies potentially due Debtor are pre-petition in nature. Matthie-son is a Chapter 7 case holding the ASCS contract requirements to be contractual duties and promises rather than conditions precedent to payment, thus pre-petition obligations. 63 B.R. at 60. The Greseth court followed the Matthieson court’s holding, even though urged to distinguish the Chapter 12 debtors’ ten-year commitment to ASCS from the alleged lesser duties owed by the Matthieson debtors. 78 B.R. at 942. The cases of Brooks Farms v. United States Dept. of Agric. (In re Brooks Farms, 70 B.R. 368 (Bankr.E.D.Wisc.1987) and In re Woloschak Farms, 74 B.R. 261 (Bankr.N.D.Ohio 1987), are cited as supporting the finding in Matthieson. However, while Brooks Farms and Woloschak Farms may have allowed offset of ASCS/CCC entitlement payments, neither case is directly on point with Matthieson, nor with the facts before this Court. In Brooks Farms, all contract requirements had been fulfilled prior to the debt- or’s bankruptcy filing, clearly establishing that the" }, { "docid": "1127950", "title": "", "text": "meeting such confirmation requirements, it does not necessarily follow that FmHA has an absolute right to all future CRP payments. As an alternative, FmHA asserts a right to offset future CRP payments against obligations owed FmHA by the Debtors. This right of offset arises pursuant to the provisions of 7 C.F.R., Part 13, which is expressly incorporated into the contracts between the Debtors and CCC. Those regulations mandate that, in any CCC program, payments due from CCC must be setoff against any other debt owed by the recipient to any agency of the Department of Agriculture. Since the FmHA is such an agency, it seeks the right to setoff against the future payments to be made by CCC under the contracts as against those monies owed by the Debtors to the FmHA. The right of offset is recognized under Section 553 of the Bankruptcy Code. That section provides, in pertinent part: (a) Except as otherwise provided in this section and in Sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case.... The Debtors argue that even though the CCC contracts were entered into before the filing of the Chapter 12 case, all payments arise post-petition. Thus, the Debtors assert that the debt “owed” by CCC under the contracts did not arise “before the commencement of the” Chapter 12 case, and cannot be offset. The right of the government to setoff in contracts of this type was dealt with by the bankruptcy court in the case of Matter of Matthieson, 63 B.R. 56 (D.Minn.1986). The court there examined the terms of the contract between the debtors and the government and concluded that, pursuant to its terms, it created mutual obligations on the parties. In particular, the court concluded that: ... the obligations of ASCS under the deficiency program contracts arose at the time the" } ]

[ { "docid": "3458436", "title": "", "text": "claim that in any event it has pleaded a common law action for which the bar is four years, and the suit on this cause of action is not barred. We agree that this is so. Read the complaint as one will, nothing can be made out of it except a suit for damages under the Federal Anti-trust Acts and it is mere quibbling we think to claim otherwise. We are in no doubt, therefore, that the' district judge in his opinion reached the-right conclusion and gave the right reason for it in holding that the Florida Three Year Statute is the applicable limitation statute. To the cases cited by him, the following may be added. Momand v. Universal Film Exchange, D.C., 43 F.Supp. 996, affirmed 1 Cir., 172 F.2d 37, certiorari denied 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118; Dipson Theatres v. Buffalo Theatres, D.C., 8 F.R.D. 86; United West Coast Theatres Corp. v. South Side Theatres, D.C., 86 F.Supp. 109; Winkler-Koch Engineering Co. v. Universal Oil Products Co., D.C., 100 F.Supp. 15; Levy v. Paramount Pictures, D.C., 104 F.Supp. 787; Electric Theatre Co. v. Twentieth Century-Fox, D.C., 113 F.Supp. 937; Fulton v. Loew’s, Inc., D.C., 114 F.Supp. 676. Appellants’ reliance on Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 73 F.2d 333, 97 A.L.R. 133 and on Fratt v. Robinson, 9 Cir., 203 F.2d 627, 37 A.L.R.2d 636, will not at all do. In both of those cases the decisions were compelled by and followed the construction which the Supreme Court of the State had given to the limitation statutes, between which a choice must be made. In addition, in the Kentucky case, the choice there was not, as here, between a statute fixing a specific limitation for a definitely described cause of action and a general or catch-all statute applying only where no specific statute could be looked to, but between two statutes, each fixing a specific limitation. In the former case, by the nature of the statutes, the catchall statute is not applicable except as a last resort. In" } ]

[ { "docid": "21202081", "title": "", "text": "renewed at successive five year intervals, the most recent being December 31, 1955.” Where one has been injured by a civil conspiracy a statute of limitations begins to run at the time that injury is inflicted. In this case that date was when the lease was executed between plaintiffs and the lessee in 1945. Thus in Steiner v. Twentieth Century-Fox Film Corporation, 9 Cir., 232 F.2d 190, 195, the court said: “ * * * In a continuing conspiracy causing continuing damage without further overt acts, the statute of limitations runs, as we have noted, from the time the blow which caused the damage was struck. Any further internal injury affects the problem of how much should be claimed in damages, not the problem of when the statute of limitations commences to run. * * * ” In Momand v. Universal Film Exchanges, 1 Cir., 172 F.2d 37, at 49, the court held that the ruie of criminal antitrust actions that a statute of limitations does not begin to run until the last overt act performed in compliance with the original conspiracy has been accomplished does not apply to a civil action. A district court in Fleischer v. A. A. P., Inc., 180 F.Supp. 717, 723 (1959), aptly said: “ * * * Where the claim is for an injury inflicted by a civil conspiracy the statute begins to run at the time the injury is inflicted. * * The only injury alleged to have been inflicted since October 13, 1953 is that occasioned by the failure of the defendants to release certain cartoons for television distribution between 1949 and 1956. * * * this failure, under the allegations of this complaint, was not the infliction of an injury but was the accrual of damages resulting from an earlier alleged invasion of plaintiff’s rights. Cf. Muskin Shoe Co. v. United Shoe Machinery Corp., D.C.D.Md.1958, 167 F.Supp. 106, 111-112; Farbenfabriken Bayer, A. G. v. Sterling Drug, Inc., D.C.D.N.J.1957, 153 F.Supp. 589, 593; Pastor v. American Telephone & Telegraph Co., D.C.S.D.N.Y.1940, 76 F.Supp. 781, 784-785. * * * The period of limitations" }, { "docid": "22371762", "title": "", "text": "* * * 2. an action upon a liability created by statute, other than a penalty or forfeiture, excepting those mentioned in section 1-207, as amended.” The matters mentioned in Section 1-207 (now O.R.S. 12.120) are not pertinent. The appellees rely upon a two year statute, O.C.L.A. 1-206 (now O.R.S. 12.110), “Within two years, — (1) an action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of art-other, not arising on contract, and not herein especially enumerated; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of fraud or deceit * * * ”. [Emphasis supplied.] Another statute providing limitation of three years is worthy of consideration and is included in the note. (a) When does the statute of limitations begin to run? There is reference in the briefs but not in the record to problems concerning the time of issuance of summons and service of process. We are bound by the record. The filing of the complaint in the district court tolls the statute of limitations where the action is to enforce as here, a federally created right, Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, 141. See, Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520; cf. Mohler v. Miller, 6 Cir., 1956, 235 F.2d 153. In civil conspiracy cases for treble damages under the Antitrust laws, the statute of limitations runs from the overt act alleged to have caused damage. Burnham Chemical Co. v. Borax Consol. Ltd., 9 Cir., 1948, 170 F.2d 569, at pages 575 and 595; Suckow Borax Mines Consol, v. Borax Consol. Ltd., 9 Cir., 185 F.2d 196, 208; Momand v. Universal Film Exch. Inc., 1 Cir., 1948, 172 F.2d 37, at page 49; Williamson v. Columbia Gas & Elec. Corp., 3 Cir., 1950, 186 F.2d 464, 469; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 1956, 232 F.2d 190 at page 194. We see no reason why the same rule" }, { "docid": "3357637", "title": "", "text": "of action which did not accrue until the common purpose and object of the alleged conspiracy, the destruction of plaintiff’s business, had been achieved. Review of the decisions relied on by plaintiff reveals crucial distinguishing features rendering them inapplicable to the case at bar. For example, in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 377 F.2d 776 (3d Cir. 1967), a non-conspiracy monopolization case, the Court expressly found that defendant’s collection for machinery rentals during the stipulated limitations period was an overt act giving rise to cause of action. On review, the United States Supreme Court in Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), affirmed the conclusion of the Court of Appeals regarding the computation of damages in all respects save one not relevant here. Thus, the Supreme Court’s decision in Hanover Shoe is entirely consistent with the Zenith holding that an antitrust claim is barred unless the plaintiff can plead and prove that a claim accrued within the limitations period. The facts and the premise of the decision in Winkler-Koch Engineering Co. v. Universal Oil Products Co., 96 F.Supp. 1014 (1950) aff’d on rehearing, 100 F.Supp. 15 (S.D.N.Y. 1951), namely, that the overt acts alleged were not complete, individualized tortious acts or per se antitrust violations to which injury and damage could be attributed, are simply inapplicable to the case at bar. While the Court concludes that the result reached in Winkler-Koch under some circumstances survives analysis after Hanover Shoe and Zenith, it is clear that the complaint alleges wrongs most, if not all of which appear to have been actionable long before the limitations period. Addition of a claim for complete destruction of one’s business, the logical result of successful anti-competitive conduct, does not serve to bring this action within the extraordinarily narrow confines of the Winkler-Koch analysis. Cf. Delta Theatres, Inc. v. Paramount Pictures, 158 F.Supp. 644 (E.D.La.1958) (Wright, J.). Plaintiff has charged the defendants with various predatory practices including a boycott, interference with customer relations, disparagement of GAC’s products and other unspecified unfair sales methods." }, { "docid": "22941582", "title": "", "text": "April 28, 1975, over two years later, the statute of limitations is an obvious bar as to those acts unless for some reason it can be found that a cause of action based on them did not accrue until sometime later. Plaintiffs present the theory that a cause of action for civil conspiracy accrues only on the date of the last overt act committed by anyone in furtherance of the conspiracy. They rely upon the purported overt acts of other co-conspirators in 1973-75 to hold open against those four (and all others) a conspiracy cause of action that would embrace, inter alia, the 1971-72 acts. This proposition is incorrect. We have said “that a cause of action for each invasion of the plaintiff’s interest ar[ises] at the time of that invasion and that the applicable statute of limitations r[uns] from that time.” Momand v. Universal Film Exchanges, 172 F.2d 37, 49 (1st Cir.), cert. denied, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1949). Accord, Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956); Crummer Co. v. DuPont, 223 F.2d 238, 247 (5th Cir.), cert. denied, 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755 (1955). While this rule arose in cases of civil antitrust conspiracies, it has been applied to civil conspiracies to violate the federal civil rights laws, Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959); see Bergschneider v. Denver, 446 F.2d 569 (9th Cir. 1971). Injury and damage in a civil conspiracy action flow from the overt acts, not from “the mere continuance of a conspiracy”. Hoffman v. Halden, supra, 268 F.2d at 303. Under plaintiffs’ theory a conspiracy action could not be maintained — since no cause of action would have accrued — until it could be told with certainty that the final overt act in furtherance of the conspiracy had been committed. See Momand v. Universal Film Exchanges, supra, 172 F.2d at 49." }, { "docid": "23227387", "title": "", "text": "F. & F. Investment, 7 Cir. 1970, 420 F.2d 1191, 1200; Highland Supply Corp. v. Reynolds Metals Co., 8 Cir. 1964, 327 F.2d 725, 732; Susser v. Carvel Corp., S.D.N.Y.1962, 206 F.Supp. 636, 651-52, aff’d, 2 Cir. 1964, 332 F.2d 505, cert. dismissed, 1965, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284; Cardinal Films, Inc., v. Republic Pictures, Corp., S.D.N.Y.1957, 148 F.Supp. 156, 159-60. This reasoning is sealed by the unqualified embrace in Zenith of the recognition that each injurious act of a continuing conspiracy gives rise to an antitrust cause of action, and the Zenith opinion’s conspicious selection of authorities eschewing the requirement of acts different in kind to set up a later accruing cause of action: In the context of a continuing conspiracy to violate the antitrust laws . [it] has usually been understood . that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. See, e. g., Crummer Co. v. Du Pont, 223 F.2d 238, 247-48 (C.A. 5 1955); Delta Theaters, Inc. v. Paramount Pictures, Inc., 158 F.Supp. 644, 648 (E.D.La.1958); Momand v. Universal Film Exchange, Inc., 43 F.Supp. 996, 1006 (D.Mass.1942), aff’d, 172 F.2d [37], at 49 (C.A. 1 1948). . . . Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date. 401 U.S. at 338, 91 S.Ct. at 806, 28 L.Ed.2d at 92. Here, Poster complains that during the four-year period sued upon, it has been continually injured by Columbia’s and National Screen’s conspiratorial foreclosure of Poster from access to supplies. Under Zenith we are obliged to recognize Poster’s continually accruing cause of action during this period. Moreover, aside from the conclusive effect of these authorities, any" }, { "docid": "22900924", "title": "", "text": "act of the conspiracy, permitting plaintiffs to recover “for damages suf-ferred within the damage period as a result of an overt act repetitious of the unlawful pre-[limitation] period acts occurring in the damage period” (418 F.2d at p. 25). Because of the continuing nature of the overt acts alleged, the statutes of limitations do not commence to run when the contracts were executed but when they terminate. Hanover Shoe v. United Shoe Machinery Corp., 392 U. S. 481, 502, n. 15, 88 S.Ct. 2224, 20 L. Ed.2d 1231. Defendants are incorrect when they argue that here, as in Emich Motors Corporation v. General Motors Corp., 229 F.2d 714, 59 A.L.R.2d 159 (7th Cir. 1956) and Baldwin v. Loew’s Inc., 312 F.2d 387 (7th Cir. 1963), only a single act was involved. In Emich, this Court concluded that the announcement by General Motors that Emich’s dealership was to be cancelled and the actual cancellation of the leadership were, so contiguous in time and of such a unitary character as to present but a single invasion of the rights of the plaintiff. And in Baldwin, acts of defendants which terminated outside the limitation period caused plaintiff to enter a lease with the third party. As those cases disclose, the touchstone of our inquiry must be the nature and extent of defendants’ behavior, not the duration of plaintiff’s injury. Here the defendants have entered into a series of contracts which manifest an on-going relationship between the individual participants and constituting the alleged invasion of the rights of the plaintiffs. For the foregoing reasons, the limitations portions of the district court’s orders are affirmed. . Since the court below held that plaintiff stated a claim for relief under Section 1982, it did not pass upon the motions to dismiss as to violations of Sections 1981, 1983 and 1985(3) of the Civil Rights Act and of the Thirteenth and Fourteenth Amendments to the Constitution of the United States, nor do we. Motions to dismiss were sustained as to other Counts of both complaints. Those Counts are not involved in this appeal. . The opinion of" }, { "docid": "22900923", "title": "", "text": "a whole, they should have an opportunity to display the necessary concealment at a subsequent date should the merits of the complaints be upheld. The Statutes of Limitations Do Not Begin to Run Until Each Contract Terminates. After careful consideration, the district court concluded that the three statutes of limitations commenced running only upon the termination of the individual contracts. The court stated that the defendants “are alleged to have been reaping the unlawful benefit through continuing enforcement of their unlawful scheme.” 300 F.Supp. at p. 220. We agree with this conclusion. Plaintiffs have alleged wrongs committed by defendants which continue during the entire lives of the individual purchase contracts. They have alleged a conspiracy among defendants, the object of which was the establishment of a continuing relationship with individual plaintiffs. That relationship, by the same token, constituted a prolonged and continuing invasion of the rights of the purchasers. As in Hazeltine Research, Inc. v. Zenith Radio Corporation, 418 F. 2d 21 (7th Cir. 1969), the limitations periods commence to run from the last overt act of the conspiracy, permitting plaintiffs to recover “for damages suf-ferred within the damage period as a result of an overt act repetitious of the unlawful pre-[limitation] period acts occurring in the damage period” (418 F.2d at p. 25). Because of the continuing nature of the overt acts alleged, the statutes of limitations do not commence to run when the contracts were executed but when they terminate. Hanover Shoe v. United Shoe Machinery Corp., 392 U. S. 481, 502, n. 15, 88 S.Ct. 2224, 20 L. Ed.2d 1231. Defendants are incorrect when they argue that here, as in Emich Motors Corporation v. General Motors Corp., 229 F.2d 714, 59 A.L.R.2d 159 (7th Cir. 1956) and Baldwin v. Loew’s Inc., 312 F.2d 387 (7th Cir. 1963), only a single act was involved. In Emich, this Court concluded that the announcement by General Motors that Emich’s dealership was to be cancelled and the actual cancellation of the leadership were, so contiguous in time and of such a unitary character as to present but a single invasion of" }, { "docid": "21223288", "title": "", "text": "power and the exertion thereof on the business of a competitor, in a relevant market, that gives rise to such a claim. Lawlor v. National Screen Service Corp., 238 F.2d 59 (3 Cir. 1956). Such right of action may arise from day to day. Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9 Cir. 1956) and cases there cited. It is well settled that where a private cause of action under the antitrust law is based upon a continuous invasion of one’s rights, his cause of action accrues from day to day as his rights are invaded to his damage. Momand v. Universal Film Exchanges, 43 F.Supp. 996, 1006 (D.C. Mass.1942) aff’d 172 F.2d 37 (1 Cir. 1948), cert. den. 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1948); Crummer Co. v. du Pont, 223 F.2d 238 (5 Cir. 1955). The issue raised by the complaint in the case at bar is appellant’s engagement in “price-fixing” by use of' “monopoly power”. The ability to fix or control prices is an indicium of monopoly power. United States v. E. I. du Pont de Nemours Co., 351 U.S. 377, 389-391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Price-fixing is an abuse of monopoly power. United States v. Aluminum Co. of America, 148 F.2d 416, 427-428 (2 Cir. 1945). Reversed and remanded for further proceedings. . Highland Supply Corp. v. Reynolds Metals Co., 221 F.Supp. 15 (E.D.Mo.). . Since the decision in Radiant Burners, Inc. v. Peoples Gas, etc., Co., 364 U.S. 636, 660, 81 S.Ct. 365, 5 L.Ed.2d 358 (1960), it is not necessary to allege injury to the public in a private treble damage action. . We think that any effort to convert Section 7 of the Clayton Act into a per se violation of the anti-trust laws so as to give rise to a private right of action under the Clayton Act has been squarely checked by what is said by Hr. Chief Justice Warren in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510. As interpreted in that case, Section 7" }, { "docid": "13824986", "title": "", "text": "only Twentieth Century-Fox and National were defendants in the Paramount case, and therefore the statute of limitations could, of course, only be suspended as to them. Momand v. Universal Film Exchange, 1 Cir., 1948, 172 F.2d 37, 48, certiorari denied 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118. The issue before the court on this motion, therefore, is whether the statute of limitations is suspended as to defendants Twentieth Century-Fox and National between July 20,1938 and May 16, 1947. The proper application of Section 5 of the Clayton Act has been repeatedly spelled out by the cases. See, e. g., Momand v. Universal Film Exchange, D.C.Mass.1942, 43 F.Supp. 996, at pages 1011, 1013, affirmed 1 Cir., 1948, 172 F.2d 37, certiorari denied 1949, 336 U.S. 967, 69 S.Ct. 939,.93 L.Ed. 1118. In order for the statute of limitations to be suspended by Section 5 of the Clayton Act, the party seeking the suspension must in his complaint allege not only the same conspiracy as that alleged by the government in the prior suit, but also the use of the same means to achieve the same objectives by the same defendants. Steiner v. 20th Century-Fox Film Corp., supra, 232 F.2d at pages 196, 198. In the Steiner case the Court of Appeals had occasion to state the rule as follows: “* -* * same means must be used to achieve the same conspiracy by the same defendants in order to toll the running of the statute of limitations under 15 U.S.C.A. § 16. Whether the statute of limitations bars the action in question may be determined in advance of trial * * *” Id., 232 F.2d at page 198. The Court then went on to make the point that a mere similarity in some of the means used in pursuance of the conspiracy would not suffice to suspend the statute of limitations. It said: “ * * * The trial court, after hearing the parties * * * granted the appellees’ motion to dismiss, for the matters complained of here are not identical with those alleged in United States" }, { "docid": "1260412", "title": "", "text": "512 F.2d 1264 (9th Cir. 1975). This case held that the statute of limitations did not bar an antitrust challenge to an exclusive baseball stadium concession franchise contract even though the claim was not filed within four years of the last allegedly damaging act (an amendment to the contract). The Court said: “This argument overlooks the necessarily continuing nature of the alleged harm .... Thus the fact that the final amendment to the contract was made in 1954 does not preclude Finley from bringing suit in 1968. To hold otherwise is to say that some damage that might have been sustained was barred before it accrued.” 512 F.2d at 1270. It is not clear what the court there meant by “continuing nature of the alleged harm.” Zenith Radio, supra, and other cases make it clear that a continuation of harm to plaintiffs alone will not keep the cause of action alive without some overt act or continuing conduct of defendants during the limitations period. In Zenith, the Supreme Court said that “each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act....” 401 U.S. at 338, 91 S.Ct. at 806 (emphasis added). See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236, 20 L.Ed.2d 1231 (1968); In Re Multidistrict Vehicle Air Pollution, supra, 591 F.2d at 71; Steiner v. 20th Century Fox Film Corp., 232 F.2d 190, 194-95 (9th Cir. 1956); Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 127 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976); Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F.2d 1029, 1035 (5th Cir. 1977), cert. denied, 434 U.S. 589, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977). The following language from Zenith also satisfies any concern that plaintiffs’ damages might be barred before they accrue: “[E]ach separate cause of action" }, { "docid": "5917259", "title": "", "text": "for conspiracy is essentially an action in tort. It is well established that such an action cannot be maintained in the absence of: first, the overt act of one or more of the conspirators in the furtherance of the conspiracy; and second, the consequential! damage to the rights of another of which the overt act is the proximate cause. The gravamen of the action lies not in the conspiracy but in the overt act. A cause of action accrues upon the commission of an overt act followed by damage to another of which the overt act is the proximate cause. The statute of limitations runs from the commission of the last overt act alleged to have caused damage. Park-in Theatres v. Paramount-Richards Theatres, D.C., 90 F.Supp. 727, affirmed 3 Cir., 185 F.2d 407, certiorari denied 341 U.S. 950, 71 S.Ct. 1017, 95 L.Ed. 1373; see also: Northern Kentucky Tel. Co. v. Southern Bell T. & T. Co., 6 Cir., 73 F.2d 333, 335, 97 A.L.R. 133, certiorari denied 294 U.S. 719, 55 S.Ct. 546, 79 L.Ed. 1251; Steiner v. 20th Century-Fox Film Corporation, 9 Cir., 232 F.2d 190, 194-195. The victim of the conspiracy may continue to suffer damage long after the last overt act has been committed, but, if he is to preserve his cause of action, he must commence suit within the period defined by the applicable statute of limitations. Ibid. The rule is discussed in Steiner v. 20th Century-Fox Film Corporation, supra. The language of the Court is apposite. It is therein stated, 232 F.2d at page 194: “The question: When does the statute of limitations begin to run? points to the first problem which must be here resolved. Appellant contends that where damages are in their nature continuing the statute runs from the date of the last injury. Under this view the statute of limitations would not run until all injury to a claimant had ceased. We must disagree. In a civil conspiracy, the statute of limitations runs from- the commission of the last overt act alleged to have caused damage.” (Citations omitted.) . . It" }, { "docid": "19056614", "title": "", "text": "* * * general statements made by the courts with respect to the running of limitations as to civil actions for conspiracy [to violate the antitrust laws] are so vague and imprecise that they are of little meaning apart from the specific factual connotations under which they were uttered.” Annot., 62 A.L.R.2d 1392 (1958). In some other circuits, antitrust violations, whether or not they involve an “overt act” like the termination of a dealership, seem to be envisioned as a continuing series of acts, each of which creates a cause of action on which the statute of limitations begins to run as of the time of that act. See Hoopes v. Union Oil Company of California, 374 F.2d 480 (9th Cir. 1967); Highland Supply Corporation v. Reynolds Metals Company, 327 F.2d 725 (8th Cir. 1964); Momand v. Universal Film Exchanges, Inc., 172 F.2d 37 (1st Cir. 1948); and Hanover Shoe, Inc. v. United Shoe Machinery Corporation, 245 F.Supp. 258 (M.D.Pa.1965). Applying this view to the facts of the case before this court, plaintiff could assert its claim if it could establish: (1) that defendants performed some acts pursuant to a scheme of business activity that violated the antitrust laws after February 2, 1963 (i. e., within four years before the commencement of this suit on February 2, 1967); and (2) that these unlawful activities of defendants occurring after February 2, 1963, caused injury to plaintiff. Damages would be limited to those incurred after February 2, 1963. This perspective, in our view, is fully in accord with both common sense and sound policy. In this circuit, however, governing precedent compels a different view and requires us to hold that plaintiff’s suit was not brought within the requisite four years after its claim accrued. Two decisions of the United States Court of Appeals for the Seventh Circuit are determinative. Baldwin v. Loew’s Incorporated, 312 F.2d 387 (7th Cir. 1963), was a treble damage action by certain owners of a movie theatre. They sought to attack a movie-leasing system that gave preference to “chain” operators of movie theatres and that allegedly compelled them" }, { "docid": "21223287", "title": "", "text": "Court, we must rule that the instant complaint reveals facts as to abuse of \"monopoly power” which under proper showing, injury and damage to appellant’s business might possibly be established within the limitation period as provided in Section 5(b) of the Clayton Act. To hold otherwise, as the District Court ruled, is to say that some damage that might have been sustained by appellant was barred before it accrued; i. e. before appellant sustained injury to its business or property because of appellee’s continuous violation of Section 2 of the Sherman Act. The question is simply one of factual proof. Damages claimed in a private antitrust suit must be different from those suffered by the general public — i. e. they must be special to the claimant. Radiant Burners, Inc. v. Peoples Gas Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358 (1960). Cf. Maltz v. Sax, (C.A.7, 1943), 134 F.2d 2; and Banana Distributors, Inc. v. United Fruit Co., (D.C.S.D.N.Y. 1958), 162 F.Supp. 32, and cases there cited. It is existence of monopoly power and the exertion thereof on the business of a competitor, in a relevant market, that gives rise to such a claim. Lawlor v. National Screen Service Corp., 238 F.2d 59 (3 Cir. 1956). Such right of action may arise from day to day. Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9 Cir. 1956) and cases there cited. It is well settled that where a private cause of action under the antitrust law is based upon a continuous invasion of one’s rights, his cause of action accrues from day to day as his rights are invaded to his damage. Momand v. Universal Film Exchanges, 43 F.Supp. 996, 1006 (D.C. Mass.1942) aff’d 172 F.2d 37 (1 Cir. 1948), cert. den. 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1948); Crummer Co. v. du Pont, 223 F.2d 238 (5 Cir. 1955). The issue raised by the complaint in the case at bar is appellant’s engagement in “price-fixing” by use of' “monopoly power”. The ability to fix or control prices is an indicium of monopoly" }, { "docid": "322631", "title": "", "text": "the rule in Delaware that actions for an injurious conspiracy are considered actions on the case. Hence, the applicable Delaware statute of limitations, pertaining to civil conspiracies, is 3 years. This being the law of the forum, it is binding in the case at bar. If the cause of action here stated accrued prior to March 30, 1950, the action must be dismissed, as it was commenced more than 3 years after the expiration of the accruing of the cause of action. In civil conspiracies the statute of limitations begins to run upon the occurrence of an overt act resulting in damage. I think our case of Park-In Theatres v. Paramount-Richards Theatres, supra, controls. It, too, involved a civil conspiracy. The action was dismissed as barred by the Delaware 3-year statute of limitations. Judge Rodney, there, wrote (90 F.Supp. at page 729): “The gravamen of a civil action for conspiracy is found in the overt act which results from the conspiracy and culminates in damage to the plaintiff. As said in Nalle v. Oyster, 230 U.S. 165, 182, 33 S.C. 1043, 1048, 57 L.Ed. 1439, ‘no civil action lies for a conspiracy unless there be an overt act that results in damage to the plaintiff.’ “The distinction between the application of a Statute of Limitations in a criminal conspiracy case and such application in a civil case based upon a conspiracy has been clearly pointed out in Momand v. Universal Film Exchanges, 1 Citf., 172 F.2d 37, at page 49. There it is shown that in a criminal prosecution the Statute of Limitations does not begin to run until the last overt act performed in compliance with the original agreement has been accomplished. A civil case, however, is based upon the damage caused by the commission of the overt act and the applicable statute must run from the time of the commission of that act which is alleged to have caused the damage. * * * “If the Statute of Limitations had no precise date, as the happening of the overt act, from which it could be computed, then there" }, { "docid": "23092601", "title": "", "text": "test should consider not merely at whom the violations were aimed but rather at whom the violations were reasonably foreseen to affect. III. Other Circuit Decisions Since the Second Circuit cases are not conclusive, I believe that the rationale in the Seventh and Ninth Circuits is validly applicable in this situation while the approach in the Third Circuit is not. See Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9th Cir. 1956); Congress Building Corp. v. Loew’s, Inc., 246 F.2d 587 (7th Cir. 1957); Melrose Realty Co., Inc. v. Loew’s, Inc., 234 F.2d 518 (3d Cir.), cert, denied, 352 U.S. 890, 77 S.Ct. 128, 1 L.Ed.2d 85 (1956), motion for leave to file petition for rehearing denied, 355 U.S. 900, 78 S.Ct. 259, 2 L.Ed.2d 198 (1957); Harrison v. Paramount Pictures, Inc., 115 F.Supp. 312 (E.D.Pa. 1953), aff’d, 211 F.2d 405 (3d Cir.), cert, denied, 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653 (1954). Steiner v. 20th Century-Fox Film Corp. (1956), supra,, a Ninth Circuit decision, involved a similar situation. In that case, the appellant, an owner of a motion picture theatre, leased the said theatre to individuals who conspired with defendants to monopolize first-run .pictures, thereby forcing appellant to receive less than the reasonable rental value of the theatre and to do acts detrimental to the appellant’s reversionary interest. The court clearly held that appellant-landlord had standing to sue under the antitrust laws. The appellees in defense asserted that as a matter of law the appellant’s interest as a landlord was too remote to permit recovery and cited the Third Circuit decision of Harrison v. Paramount Pictures, supra,, as their authority. The court in Steiner distinguished the Harrison case and said that in Harrison there were no direct dealings between the plaintiff and the defendant. Steiner, supra, 232 F.2d at 193. In Steiner the ap-pellees conspired with the prime lessee to force the appellant to receive less than the reasonable rent. Appellant was not seeking simply damages caused to another, the lessee, but was claiming direct injury to itself. The majority opinion in our present case suggests" }, { "docid": "22371763", "title": "", "text": "record. The filing of the complaint in the district court tolls the statute of limitations where the action is to enforce as here, a federally created right, Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, 141. See, Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520; cf. Mohler v. Miller, 6 Cir., 1956, 235 F.2d 153. In civil conspiracy cases for treble damages under the Antitrust laws, the statute of limitations runs from the overt act alleged to have caused damage. Burnham Chemical Co. v. Borax Consol. Ltd., 9 Cir., 1948, 170 F.2d 569, at pages 575 and 595; Suckow Borax Mines Consol, v. Borax Consol. Ltd., 9 Cir., 185 F.2d 196, 208; Momand v. Universal Film Exch. Inc., 1 Cir., 1948, 172 F.2d 37, at page 49; Williamson v. Columbia Gas & Elec. Corp., 3 Cir., 1950, 186 F.2d 464, 469; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 1956, 232 F.2d 190 at page 194. We see no reason why the same rule should not apply in civil conspiracy to violate the Civil Rights act and we so hold. In ascertaining which is the last in time of the overt acts, we note several dates mentioned in the second amended complaint and from this complaint, the significance of these dates can be ascertained. (a) January 10, 1952: — Plaintiff was taken into custody; (b) August 5, 1952: — Various acts of the defendants are alleged as having occurred on this date; property was seized from plaintiff’s person on this date; the court order was issued from the circuit or trial court of Multnomah county, Oregon, requiring plaintiff to be brought before the court; plaintiff was delivered to the Morningside hospital rather than brought before the court; (c) October 23, 1952: — Paragraph XI of the second amended complaint alleges confinement in the Oregon State Hospital at Pendleton, from August 5, 1952 to and including October 23, 1952; (d) June 18, 1956: — Paragraphs VII, VIII, IX, X, in substance allege the conspiracy continued to June 18, 1956. No" }, { "docid": "23227383", "title": "", "text": "cuts a big figure. . . . [Wjhatever expressions we have used from time to time, which might suggest that in antitrust situations there is no such thing as a continuing conspiracy, now must yield their sweeping force.” 456 F.2d at 666. Poster’s complaint in this case is based on continuing antitrust behavior, not merely the continuing damage it feels from a single day’s monopoly and refusal to deal in 1961. Indeed, our 1970 opinion affirming Poster’s recovery in its 1969 trial against National Screen of damages whose computation was based on a day by day calculation of accruing injury according to Bigelow v. R. K. O. Radio Pictures, Inc., 1945, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652, demonstrates the continuing nature of the injury Poster complains of, as well as its daily calculability. Cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 3 Cir. 1967, 377 F.2d 776, 794, aff’d in this regard, 392 U.S. at 502 n. 15, 88 S.Ct. at 2236, 20 L.Ed.2d at 1246, distinguishing Norman Tobacco, supra. Moreover, in cases where plaintiffs have suffered from a continued refusal to deal, they have been forbidden to prove damages inflicted by persistence of the refusal after the date of filing suit, precisely on the ground that a plaintiff is barred from recovering on injuries caused by wrongful acts subsequent to suit, and the cause of action is founded on an act of a continuing nature. The [initial] express refusal to deal constituted no more than a refusal to deal at that time. Flintkote Co. v. Lysfjord, 9 Cir. 1957, 246 F.2d 368, 394—96, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46; Connecticut Importing Co. v. Frankfort Distilleries, 2 Cir. 1939, 101 F.2d 79; Frey & Son, Inc., v. Cudahy Packing Co., D.Md.1917. 243 F. 205. See also Momand v. Universal Film Exchange, Inc., D.Mass.1942, 43 F.Supp. 996, 1006, aff’d, 1 Cir. 1948, 172 F.2d 37, 49, cited with approval in Zenith, 401 U.S. at 338, 91 S.Ct. at 806, 28 L.Ed.2d at 92. The Supreme Court’s approval of this approach is indicated" }, { "docid": "23227384", "title": "", "text": "in cases where plaintiffs have suffered from a continued refusal to deal, they have been forbidden to prove damages inflicted by persistence of the refusal after the date of filing suit, precisely on the ground that a plaintiff is barred from recovering on injuries caused by wrongful acts subsequent to suit, and the cause of action is founded on an act of a continuing nature. The [initial] express refusal to deal constituted no more than a refusal to deal at that time. Flintkote Co. v. Lysfjord, 9 Cir. 1957, 246 F.2d 368, 394—96, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46; Connecticut Importing Co. v. Frankfort Distilleries, 2 Cir. 1939, 101 F.2d 79; Frey & Son, Inc., v. Cudahy Packing Co., D.Md.1917. 243 F. 205. See also Momand v. Universal Film Exchange, Inc., D.Mass.1942, 43 F.Supp. 996, 1006, aff’d, 1 Cir. 1948, 172 F.2d 37, 49, cited with approval in Zenith, 401 U.S. at 338, 91 S.Ct. at 806, 28 L.Ed.2d at 92. The Supreme Court’s approval of this approach is indicated in Hanover Shoe, supra. There the antitrust defendant had exercised its monopoly power since 1912 to force the plaintiff to lease (and not buy) its machinery at monopoly rates but the plaintiff did not sue until 1955. The Court held that the antitrust action was not barred by the statute of limitations with respect to the period 1951 — 1955 because [w]e are not dealing with a violation which, if it occurs at all, must occur within some specific and limited time span. Cf. Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (C.A. 7 1956), upon which [the defendant] relies. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing' and accumulating harm on [the plaintiff], 392 U.S. at 502 n. 15, 88 S.Ct. at 2236, 20 L.Ed.2d at 1246. This language applies equally aptly to the matter at bar. These authorities lay to rest the theory that under Norman Tobacco’s dictum, suit upon a continued antitrust violation must be prosecuted within four years" }, { "docid": "23395388", "title": "", "text": "or with foreign nations, is declared to be illegal * * 15 U.S.C.A. § 1. . “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.” 15 U.S.C.A. § 2. . 15 U.S.C.A. § 15. In Suit No. 1 Exhibitors sought $300,000 in damages. . In Suit No. 2 Columbia Pictures Corp. was a defendant. . Other jobbers have also been persistent in their claims. See The Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga., 1969, 306 F.Supp. 491. . For other cases reaching this same result see Baldwin v. Loew’s Inc., 7 Cir., 1963, 312 F.2d 387; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 1956, 232 F.2d 190; Crummer Co. v. DuPont, 5 Cir., 1955, 223 F.2d 238, cert. denied, 1956, 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755; Momand v. Universal Film Exchanges, 1 Cir., 1948, 172 F.2d 37, cert. denied, 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118; Schenley Inds., Inc. v. New Jersey Wine & Spirit Wholesalers Ass’n, D.N.J., 1967, 272 F.Supp. 872; Skouras Theatres Corp. v. Radio-Keith Orpheum Corp., S.D.N.Y., 1961, 193 F. Supp. 401; Molinas v. National Basketball Ass’n, S.D.N.Y., 190 F.Supp. 241; Fleischer v. A. A. P., Inc., S.D.N.Y., 1959, 180 F.Supp 717. For cases taking a somewhat different approach see DeLaughter v. Borden Co., 5 Cir., 1966, 364 F.2d 624, 629-630; Delta Theatres, Inc. v. Paramount Pictures, Inc., E.D.La., 1968, 158 F.Supp. 644, 649. . For cases giving collateral estoppel effect to summary judgments see Hyman v. Regenstein, 5 Cir., 1958, 258 F.2d 502, 510, cert. denied, 1959, 359 U.S. 913, 79 S.Ct. 589, 3 L.Ed.2d 575; Wolcott v. Hutchins, S.D.N.Y., 1968, 280 F.Supp. 559, 563. . See Hindes v. United States," }, { "docid": "11452003", "title": "", "text": "been aware of the Browne-Vintners Old transaction. The judge applied the rule of criminal conspiracy where the statute runs from the last overt act. We cannot agree with this application of the law to the facts of this case. Section 11 of the New York Civil Practice Act provides that periods of limitation must be computed from “the time of the accruing of the right to relief by action, special proceeding, defense or otherwise * * * ” The damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts. Nalle v. Oyster, 1913, 230 U.S. 165, 182, 33 S.Ct. 1043, 57 L.Ed. 1439; Lewis Invisible Stitch Mach. Co. v. Columbia Blindstitch Mach. Mfg. Corp., 2 Cir., 1936, 80 F.2d 862, 864. The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts. The person harmed by the conspiracy may bring suit as soon as the damage to him is inflicted; he obviously need not wait until the termination of the conspiracy which caused it. It is at the time of injury that the “right to relief by action” arises and the statute therefore begins to run at the moment such injury occurs. Momand v. Universal Film Exchanges, 1 Cir., 1948, 172 F.2d 37, 49, certiorari denied, 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118; Park-In Theatres v. Paramount-Richards Theatres, D.C.Del.1950, 90. F.Supp. 727, 729, affirmed 3 Cir., 1950, 185 F.2d 407, certiorari denied, 1951, 341 U.S. 950, 71 S.Ct. 1017, 95 L.Ed. 1373; Williamson v. Columbia Gas & Electric Corp., 3 Cir., 1950, 186 F.2d 464, 469, certiorari denied, 1951, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355. The Momand case points out the important distinction between the rule applicable in civil and that applicable in criminal cases. a. The L. L. & B. Claim The statute started running against the L. L. & B." } ]

[ { "docid": "22934605", "title": "", "text": "without the benefit of the views of Patent Office tribunals. The solicitor is just as free to argue his views as he is when they have been considered below. We therefore proceed to a consideration of the question raised. What References are “Prior Art” — Part II Joint Applicants' Own Sole Patents As we recently pointed out in In re Hilmer, 53 CCPA 1287, 1313, 359 F. 2d 859, 879, 149 USPQ 480, 496 at [11], Much confused thinking could be avoided by realizing that rejections are based on statutory provisions, not on references, and that the references merely supply the evidence of lack of novelty, obviousness, loss of right or whatever may be the ground of rejection. The ground of rejection Land and Eogers ’606 are cited to support is section 103 obviousness. These patents did not issue until several years after the instant application was filed. . They are being used as references as of U.S. filing dates which antedate the joint appellants’ filing date. The only basis for so using a U.S. patent is section 102(e) : A person shall be entitled to a patent unless— (e) the invention was described in a patent granted on an application for patent by another filed in the United, States before the invention thereof by the applicant for patent ⅝ * *. [Emphasis ours.] “Another” clearly means another than “the applicants].” In the final rejection, the examiner appears to have assumed availability of the Land and Sogers ’606 patents as prior art on the ground Land and Sogers, individually, were “another” with respect to the same persons as joint applicants. The first Answer took it for granted. The second Answer on the first remand merely pointed out the specific filing dates antedating that of the present application. The third Answer on the second remand to consider amendments again seems to have assumed availability as prior art and the board clearly did likewise. Additionally, in explaining why it found it unnecessary to rule on the double patenting rejection, which the examiner had retained throughout, the board made the express statement that" } ]

[ { "docid": "23213381", "title": "", "text": "in this form under the trademark Keflex. The patent for dense form cephalexin (the ’656 patent) is premised on the validity of the patent for regular cephalexin (the ’861 patent) which is at issue in this case. . U.S. Patent No. 3,507,861. . Zenith Laboratories, Inc. v. Eli Lilly & Co., 460 F.Supp. 812, 816-17 (D.N.J.1978). . In addition, during the first two years of distribution, Eli Lilly expended approximately $12.3 million on a variety of activities designed to encourage physicians to prescribe cephalexin. . Zenith Laboratories, Inc. v. Eli Lilly & Co., 460 F.Supp. 812, 818 (D.N.J.1978). . The injunction covered only the patent on dense form cephalexin (the ’656 patent). See notes 2 & 11 supra. . 66 Stat. 797, ch. 950 (codified at 35 U.S.C. §§ 100-293 (1976 & Supp. II 1978)). . Sections 101 and 102 provide respectively: § 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless-(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention, or (d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or (e) the invention was described" }, { "docid": "17588427", "title": "", "text": "as $8,750 a week. TRIAL COURT PROCEEDINGS With the exception of the questions of patent validity, the parties and the court below resolved or otherwise eliminated from the trial all other issues, including the issue of infringement. Thus, the only substantive issues presented to the jury were whether the Rice Patent was anticipated by the prior art in the field and therefore not patentable under 35 U.S.C. §§ 101 and 102; whether the subject matter of the patent was obvious and consequently not patentable under 35 U.S.C. § 103; and whether fraud on the Patent Office had been committed. The relevant statutory provisions with which the court was concerned then provide in part as follows: § 101. Inventions Patentable. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor . § 102. Conditions for patentability; novelty and loss of right to patent. A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent § 103. Conditions for patentability; non-obvious subject matter. A patent may not be obtained if the difference between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. . These sections establish novelty, usefulness and obviousness tests, all of which are relevant in determining the question of patent-ability. See Graham v. John Deere, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1965). The defendants argue that the Rice Patent does not describe any new or novel product since it was both anticipated by and obvious from the prior art in the field. Consequently, they contend that the patent was improvidently granted. As to each of these points, however, the burden" }, { "docid": "22889912", "title": "", "text": "machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. In Diamond v. Diehr, 450 U.S. 175, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) the Court explained that Section 101 is not an independent condition of patentability, but a general statement of subject matter eligibility. The Court stated: Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection “subject to the conditions and requirements of this title.” Specific conditions for pat-entability follow and § 102 covers in detail the conditions relating to novelty. The question therefore of whether a particular invention is novel is “wholly apart from whether the invention falls in a category of statutory subject matter.” Id. at 189-90, 101 S.Ct. 1048 (footnote omitted) (quoting In re Bergy, 596 F.2d 952, 961 (C.C.P.A.1979)). “Process” is defined in the 1952 statute as follows: 35 U.S.C. § 100(b) The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. The 1952 Patent Act replaced the word “art” in prior statutes with the word “process,” while the rest of Section 101 was unchanged from earlier statutes. The legislative history for the 1952 Act explained that “art” had been “interpreted by courts to be practically synonymous with process or method.” S.Rep. No. 82-1979 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2398, 2409-10. In Diehr the Court explained that a process “has historically enjoyed patent protection because it was considered a form of ‘art’ as that term was used in the 1793 Act.” 450 U.S. at 182, 101 S.Ct. 1048. The definition of “process” provided at 35 U.S.C. § 100(b) is not “unhelpful,” as this court now states, maj. op. at 951 n. 3, but rather points up the errors in the court’s new statutory interpretation. Section 100(b) incorporates the prior usage “art” and the term “method,” and places no restriction on the definition. This court’s redefinition of “process” as limiting access to the patent" }, { "docid": "5384799", "title": "", "text": "obtained from animal sources. It states: “The new product in its acid form can be obtained from various animal sources. For example, it can be obtained from animal glandular tissues such as mammalian liver, or from kidney tissue. It is essential for the growth of bacteria and is also required for growth of the animal organism, yet it can be shown to be a different product from the known vitamins isolated from natural sources. ****** “Further objects of the invention are practical processes for the treatment of animal tissues whereby the new products are separated and concentrated economically.” The specification gives but one example of how to obtain appellant’s product. The starting material is 6,000 pounds of hog liver which have been frozen fresh and allowed to thaw a day or two at room temperature, producing an acid by autolysis. The specification further states: “In carrying out the process, any suitable crude aqueous animal glandular extract, such as liver or kidney extract, may be used as starting material. Even liver press juices may be used. “We have also found it preferable to freeze the glandular tissue and then thaw it out before extracting it. By allowing the frozen tissue to stand for a considerable time, such as a week or a month, or even longer, if desired, good yields are obtainable by immediately extracting the tissue as soon as it has thawed out. “Regardless of whether the freezing or application of similar treatment for rupturing the cells of the glandular tissue is used, the auto-lytic treatment is of great practical value for obtaining good yields of vitamin product.” The file wrapper proceedings in the Patent Office show that appellant originally filed nine claims, the first four being process and the last five being product claims. All of them were rejected by the Patent Office, which said as to product claims 5 to 9: ' “Claims 5 to 9 are further rejected as failing to define the product properly as these claims fail to set out the product either in terms of its constitution or of the process steps by which" }, { "docid": "1231831", "title": "", "text": "REMANDED . No appeal has been taken with respect to other counts of the complaint, each of which was also resolved in Park’s favor. . 69 Calif.L.Rev. 731, 732 (1981). . See Bio-Rad Laboratories, Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 615, 222 USPQ 654, 662 (Fed.Cir.1984). But see American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1364, 220 USPQ 763, 774 (Fed.Cir.1984) (plain error in instruction, not objected to, required new trial). . 35 U.S.C. 282 provides in pertinent part: A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. . The parts of the patent statute (Title 35) pertinent to our analysis are the following (all emphasis ours): § 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or describ ed in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or____ (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or * * * * * * § 103. Conditions for patentability; non-obvious subject matter A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102" }, { "docid": "4427686", "title": "", "text": "record in this case supported these judgments, we do not believe they are ours to make. Congress has declared that the manner in which an invention is made may not defeat patentability. We disavow any test of obviousness that is inconsistent with this clear expression of congressional intent. . In Aronson v. Quick Point Pencil Co., 440 U.S. 257, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979), the Supreme Court explained the purposes of the Act: First, patent law seeks to foster and reward invention; second, it promotes disclosure of inventions, to stimulate further innovation and to permit the public to practice the invention once the patent expires; third, the stringent requirements for patent protection seek to assure that ideas in the public domain remain there for the free use of the public. . 35 U.S.C. § 101, a general statement of the type of subject matter that is eligible for patent protection, provides that: • Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. 35 U.S.C. § 102, which describes the statutory novelty required for patentability, provides in pertinent part that: A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in. a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or * sis * if! * (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention" }, { "docid": "23611683", "title": "", "text": "1526, 1542 (Fed.Cir.1994) (en banc). Section 101 provides: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Section 100(b) further provides that the “term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” To understand these provisions in context, the Supreme Court has advised that the “new” requirement in Section 101 is now governed by Section 102. Diehr, 450 U.S. at 189, 101 S.Ct. 1048; see S.Rep. No. 82-1979, at 6 (1952) (“Section 102 ... includes, in effect, an amplification and definition of ‘new’ in section 101.”) (S.Rep.82-1979). Similarly, as shown below, whether a new process, machine, and so on is “inventive” is not an issue under Section 101; the condition for “more” than novelty is contained only in Section 103. Thus, so long as the “conditions and requirements” of patentability are met, a person who invents or discovers a useful process, or an improvement to one, may obtain a patent—and may do so even if the process includes only a new use of an old machine. See Bilski, 130 S.Ct. at 3225; Alappat, 33 F.3d at 1542. Underscoring its breadth, Section 101 both uses expansive categories and modifies them with the word “any.” In “choosing such expansive terms ... modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Bilski, 130 S.Ct. at 3225 (quoting Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980) (some internal quotation marks omitted)). Defining one of those expansive categories, Section 100(b) confirms the statute’s intended breadth. At first examination, the Act’s definition of “process” to include a new use of a known machine seems superfluous. After all, if “any” process may be patented under Section 101, Section 100(b) seems wholly unnecessary. An examination of the context for adding Section 100(b) informs the analysis of Section 101. Specifically, the 1952 amendments added" }, { "docid": "23611682", "title": "", "text": "28 U.S.C. § 1295(a)(1). A panel of this court reversed. CLS Bank Int’l v. Alice Corp., 685 F.3d 1341 (Fed.Cir.2012). CLS Bank filed a petition for rehearing en banc. In its order granting en banc reconsideration, this court invited the parties and others to address two questions: a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea? b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes? CLS Bank Int’l v. Alice Corp., 484 Fed.Appx. 559 (Fed.Cir.2012). II We begin with the text of the statute. See Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981); see also Bilski, 130 S.Ct. at 3225; In re Alappat, 33 F.3d 1526, 1542 (Fed.Cir.1994) (en banc). Section 101 provides: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Section 100(b) further provides that the “term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” To understand these provisions in context, the Supreme Court has advised that the “new” requirement in Section 101 is now governed by Section 102. Diehr, 450 U.S. at 189, 101 S.Ct. 1048; see S.Rep. No. 82-1979, at 6 (1952) (“Section 102 ... includes, in effect, an amplification and definition of ‘new’ in section 101.”) (S.Rep.82-1979). Similarly, as shown below, whether a new process, machine, and so on is “inventive” is not an issue under Section 101; the condition for “more” than novelty is contained only in Section 103. Thus, so long as the “conditions and requirements” of patentability are met, a person" }, { "docid": "14627679", "title": "", "text": "correct result on the ultimate question of patentability would depend on how one interprets “purely mental.” If so construed as to encompass only steps incapable of being performed by a machine or apparatus, it might lead to a correct result. Clearly there are no steps of that nature in the presently appealed claims. If the expression “purely mental” is construed (as the board apparently did here) so as to encompass steps performable by apparatus, as well as mentally, then the “Rule” is unsound for reasons expressed below. The sole rejection in this case being based on the ground that the subject matter of the appealed claims is “non-statutory,” we here set down the involved statute, 35 U.S.C. § 101 (emphasis ours): 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Since no question is raised as to novelty or utility, the only question is whether the claimed subject matter falls within one of the enumerated categories of patentable inventions and the only category here involved is “process.” A definition of process is provided in 35 U.S.C. § 100(b) reading: (b) The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. The Patent Office has raised no question involving application of the definition. It simply insists that the methods of the appealed claims are not such as are encompassed by the term “process” because the claims all fall into one of two categories: (1) “all mental steps”; (2) “some mental steps and some physical steps with patentability dependent on the mental steps.” The examiner himself categorized his rejection as a “mental step rejection” and this raises two questions: Are some or all of the steps in each claim “mental” and, if so, is that fatal to patentability? As may be seen from the statutory language, it contains nothing whatever which would either include or exclude claims containing" }, { "docid": "1565394", "title": "", "text": "the Goff claims are indefinite. As noted in our findings 9 through 11, the language and meaning of the claims are precise. The claim language is fully supported by the disclosures of the Goff patent specifications and drawings. The claim recitals are unambiguous. Over the years, courts have applied various tests to determine the presence or lack of patentable invention. The early holding that ingenuity and skill more than that possessed by an ordinary mechanic acquainted with the business are essential elements of every invention, Hotchkiss v. Greenwood, 11 How. 248 (18 U. S. 615), 52 U. S. 248, 267 (1850), has been interpreted in various ways. During the intervening century, courts have required inventive genius, Reckendorfer v. Faber, 92 U. S. 347, 357; flash of thought, Densmore v. Scofield, 102 U. S. 375, 378; intuitive genius, Potts v. Creager, 155 U. S. 597, 607; flash of genius, Cuno v. Auto Devices, 314 U. S. 84, 91; unusual and surprising consequences, Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 149, and the like. The Patent Act of 1952, 35 U. S. C. § 100 et seq. (1952 Ed.), 66 Stat. 792, revised and codified the laws relating to patents. Patent-ability of inventions is now defined in chapter 10 of title 35, and sections 101 and 103 thereof require consideration in this suit. These sections read: § 101 — Inventions patentable — Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. § 103 — Conditions for patentability; nonobvious subject matter — A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art" }, { "docid": "18956653", "title": "", "text": "claim of an application failing the requirements of § 101 must be rejected even if it meets all of the other legal requirements of patentability.” In re Bilski, 545 F.3d 943, 950 (Fed.Cir.2008) (citation omitted) (hereinafter “Bilski I ”). A patent is presumed to be valid by statute. See 35 U.S.C. § 282. The party challenging the validity of a patent bears the burden of proving invalidity by clear and convincing evidence. See, e.g., Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed.Cir.2007). The question of whether a patent is invalid under Section 101 of the codified Patent Act is an “issue of law.” Bilski I, 545 F.3d at 951. Section 101 of the Patent Act Section 101 of the codified Patent Act defines the subject matter that is patentable: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. 35 U.S.C. § 101 (“Section 101”). Section 101 lays out four subject matter categories of inventions or discoveries eligible for patent protection: processes, machines, manufactures, or compositions of matter. The '073 patent claims a “method for facilitating evaluation,” which plainly is a process. Section 100(b) of the Patent Act provides that “[t]he term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” 35 U.S.C. § 100. The Supreme Court has elaborated on this statutory definition: A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely" }, { "docid": "11801814", "title": "", "text": "the categories of statutory subject matter, depending on such extraneous factors. Whether “Bule” 1 of Abrams would lead to a correct result on the ultimate question of patentability would depend on how one interprets “purely mental.” If so construed as to encompass only steps incapable of being performed by a machine or apparatus, it might lead to a correct result. Clearly there are no steps of that nature in the presently appealed claims. If the expression “purely mental” is construed (as the board apparently did here) so as to encompass steps performable by apparatus, as well as mentally, then the “Rule” is unsound for reasons expressed below. The sole rejection in this case being based on the ground that the subject matter of the appealed claims is “non-statutory,” we here set down the involved statute, 35 USC 101 (emphasis ours) : 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Since no question is raised as to novelty or utility, the only question is whether the claimed subject matter falls within one of the enumerated categories of patentable inventions and the only category here involved is “process.” A definition of process is provided in 35 USC 100(b) reading: (b) The term “process” means, process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. The Patent Office has raised no question involving application of the definition. It simply insists that the methods of the appealed claims are not such as are encompassed by the term “process” because the claims all fall into one of two categories: (1) “all mental steps”; (2) “some mental steps and some physical steps with patentability dependent on the mental steps.” The examiner himself categorized his rejection as a “mental step rejection” and this raises two questions: Are some or all of the steps in each claim “mental” and, if so, is that fatal to patentability ?" }, { "docid": "19235544", "title": "", "text": "35 U.S.C. § 101 (1970) provides: “§ 101. Inventions patentable. “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” . Patent cases being relatively infrequent, comments of potential applicability may be found in “Judges’ Primer: Patent and Copyright Law and Procedure” in Part VIII of Seminars For Newly Appointed U.S. District Judges (1970-71, Federal Judicial Center, Washington, D. C.), and “Special Problems in Patent Cases,” 66 F.R.D. 529 (1975) (reprinted in 57 J.Pat.Off. Soc’y 675 (1975)) presented at the Federal Judicial Center, October 16, 1974. For discussion of jury trials in patent cases, see Ropski, Constitutional and Procedural Aspects of the Use of Juries in Patent Litigation (pts. I — II), 58 J. Pat.Off.Soc’y 609, 673 (1976). . “The novelty required is not novelty in an absolute sense, as the statute defines what is to be looked to in order to show that an invention is not new.” Federico, “Commentary On The New Patent Act [of 1952]” in 35 U.S.C.A. p. 1, at p. 17 (1954). Thus, prior public knowledge or use in a foreign country would destroy novelty if the novelty requirement resided merely in the word “new” in the absolute sense in which it appears in § 101, whereas Congress has provided in § 102 that such foreign circumstances do not destroy novelty under the statute. Similarly, under proper circumstances, a person may be entitled to a patent, even though that person was not the first to make the invention. See, e. g., Horwath v. Lee, 564 F.2d 948, 195 USPQ 701 (Cust. & Pat.App. 1977) (first inventor suppressed or concealed the invention; therefore, second inventor entitled to priority under 35 U.S.C. § 102(g)). . The other subsections of § 102 have no application to the facts of this case. . The opinion below includes the statement that “this Circuit has recently restated the rule that every element of a combination invention must cooperate to produce a new result in order" }, { "docid": "13867786", "title": "", "text": "language is fully supported by the disclosures of the Goff patent specifications and drawings. The claim recitals are unambiguous. Over the years, courts have applied various tests to determine the presence or lack of patentable invention. The early holding that ingenuity and skill more than that possessed by an ordinary mechanic acquainted with the business are essential elements of every invention, Hotchkiss v. Greenwood, 1850, 11 How. 248, 52 U.S. 248, 267, 13 L.Ed. 683, has been interpreted in various ways. During the intervening century, courts have required inventive genius, Reckendorfer v. Faber, 92 U.S. 347, 357, 23 L.Ed. 719; flash of thought, Densmore v. Scofield, 102 U.S. 375, 378, 26 L.Ed. 214; intuitive genius, Potts v. Creager, 155 U.S. 597, 607, 15 S.Ct. 194, 39 L.Ed. 275; flash of genius, Cuno Engineering Corp. v. Automatic Devices, 314 U.S. 84, 91, 62 S.Ct. 37, 86 L.Ed. 58; unusual and surprising consequences, Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 149, 71 S.Ct. 127, 95 L.Ed. 162, and the like. The Patent Act of 1952, 35 U.S.C. § 100 et seq. (1952 Ed.), 66 Stat. 792, revised and codified the laws relating to patents. Patentability of inventions is now defined in chapter 10 of title 35, and sections 101 and 103 thereof require consideration in this suit. These sections read: “§ 101. Inventions patentable — ■ Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” \"§ 10S. Conditions for patent-ability; now-obvious subject matter — A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patent-ability" }, { "docid": "22889911", "title": "", "text": "limits of patentable subject matter, in that “fundamental truths” were not intended to be included in a system of exclusive rights, for they are the general foundations of knowledge. Thus laws of nature, natural phenomena, and abstract ideas are not subject to patenting. Several rulings of the Court have reviewed patent eligibility in light of these fundamentals. However, the Court explicitly negated today’s restrictions. My colleagues in the majority are mistaken in finding that decisions of the Court require the per se limits to patent eligibility that the Federal Circuit today imposes. The patent statute and the Court’s decisions neither establish nor support the exclusionary criteria now adopted. The court today holds that any process that does not transform physical matter or require performance by machine is not within the definition of “process” in any of the patent statutes since 1790. All of the statutes contained a broad definition of patent-eligible subject matter, like that in the current Patent Act of 1952: 35 U.S.C § 101 Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. In Diamond v. Diehr, 450 U.S. 175, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) the Court explained that Section 101 is not an independent condition of patentability, but a general statement of subject matter eligibility. The Court stated: Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection “subject to the conditions and requirements of this title.” Specific conditions for pat-entability follow and § 102 covers in detail the conditions relating to novelty. The question therefore of whether a particular invention is novel is “wholly apart from whether the invention falls in a category of statutory subject matter.” Id. at 189-90, 101 S.Ct. 1048 (footnote omitted) (quoting In re Bergy, 596 F.2d 952, 961 (C.C.P.A.1979)). “Process” is defined in the 1952 statute as follows: 35 U.S.C. § 100(b) The term “process” means process, art or method, and includes a" }, { "docid": "17818485", "title": "", "text": "and commodity derivatives exchange, while CBOT operates an exchange that deals in commodity futures and options on futures through open auction and/or electronic means. (R. 19, Am. Compl. ¶¶ 1, 3.) . The relevant facts have been culled from the exhibits attached to Plaintiffs' claim construction memorandum (R. 82, Pis.’ App.) and TRG’s claim construction memorandum (R. 85, Def.'s App.). . Garber previously filed provisional application No. 60/030,584 (\" '584 provisional application”) entitled \"System and Method for Trading Currencies Through a Principal Market Maker and Rolling Spot Link” on November 12, 1996. (R. 82, Pis.' App., Ex. 6 at 3.) . In relevant part, Section 112 provides that the \"specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112. . Section 101 provides: \"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. . Section 102(b) provides that a “person shall be entitled to a patent unless — the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U.S.C. § 102(b). . Section 103(a) states that a \"patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.” 35 U.S.C. § 103(a). . The Court takes judicial notice of the complaint in" }, { "docid": "21264160", "title": "", "text": "the text of the statute. See Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). 35 U.S.C. § 101 provides: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. In addition to the requirement that patentable subject matter fall within one of the four statutory categories (“process, machine, manufacture, or composition of matter”), it must also be “new and useful.” As with the term “manufacture,” we must be sensitive to the fact that modern everyday usage may be a poor guide to the meaning of such old and oft-interpreted text. Nonetheless, the terms “new” and “useful” define and delimit the exceptions from statutory subject matter. A. “New” “Novelty,” as a patent doctrine, is ordinarily regarded as a requirement not of § 101 but of § 102. See Diehr, 450 U.S. at 189, 101 S.Ct. 1048 (“It has been urged that novelty is an appropriate consideration under § 101-Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection ‘subject to the conditions and requirements of this title.’ Specific conditions for patentability follow and § 102 covers in detail the conditions relating to novelty.”). Nonetheless, precedent supports attributing to the term “new” in § 101 a separate requirement that statutory subject matter be a type of invention that can be described as a “new” creation rather than the discovery of a pre-existing principle. See Titanium Metals Corp. of Am. v. Banner, 778 F.2d 775, 780-81 (Fed.Cir.1985) (emphasizing the requirement of § 101 that “what is sought to be patented, as determined by the claims, be new” and observing that “[s]ection 102, the usual basis for rejection for lack of novelty or anticipation, lays down certain principles for determining the novelty required by § 101”); cf. Diehr, 450 U.S. at 211, 101 S.Ct. 1048 (Stevens, J., dissenting) (dis cussing the difference between the so-called “discovery” requirement of § 101 and the “novelty”" }, { "docid": "21010824", "title": "", "text": "Jr. 471 patent. Hanson then struck from the specification this finely divided reference and stated that the water may be introduced by a garden hose nozzle. Thus Alpine argues that Hanson may not now contend there is an infringement since the Hedco device uses finely divided water. We do not, however read this file wrapper history to mean that Hanson was no longer claiming a method for making snow that otherwise practiced his claim if finely divided water was introduced. The Hanson claims were never changed in this respect and by their terms they cover the introduction of finely divided water. Moreover, the specification continued to recite that the Hanson method will operate effectively if finely divided water is introduced into the airstream. We therefore construe this file wrapper history as simply making it clear that the Hanson method will also operate successfully without introducing finely divided water. CONCLUSION Since we agree with the district court’s determination that the claims of the patent are valid and were infringed, the judgment of the district court is AFFIRMED. . Hedco was originally a defendant but was later dismissed for lack of venue. It did, however, take over the defense of this case. . It is not clear whether Alpine contends also that the Hanson 164 patent lacks novelty under 35 U.S.C. §§ 101 and 102(a). In any case, as will appear from our discussion of the obviousness issue under § 103, the trial court found, with which we agree, that it did have novelty. Sections 101, 102(a) and 103 provide as follows: § 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention" }, { "docid": "22665788", "title": "", "text": "complaint from any body.” VI Writings of Thomas Jefferson, at 180-181 (Washington ed.). “[A] machine of which we are possessed, might be applied by every man to any use of which it is susceptible.” Letter to Isaac McPherson, supra, at 181. “[A] change of material should not give title to a patent. As the making a ploughshare of east rather than of wrought iron; a comb of iron instead of horn or of ivory . . . .” Ibid. “[A] mere change of form should give no right to a patent, as a high-quartered shoe instead of a low one; a round hat instead of a three-square; or a square bucket instead of a round one.” Id., at 181-182. “[A combined use of old implements.] A man has a right to use a saw, an axe, a plane separately; may he not combine their uses on the same piece of wood?” Letter to Oliver Evans (Jan. 1814), VI Writings of Thomas Jefferson, at 298 (Washington ed.). In historical retrospect, the specific result in Hotchkiss flows directly from an application of one of the rules of the original board of “Commissioners,” n. 3, second rule, supra. “§ 101. Inventions ‘patentable “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” “§ 102. Conditions for patentability; novelty and loss of right to patent “A person shall be entitled to a patent unless— “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in ,a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or “(e) he has abandoned the invention, or “(d) the invention was first patented" }, { "docid": "21010825", "title": "", "text": "AFFIRMED. . Hedco was originally a defendant but was later dismissed for lack of venue. It did, however, take over the defense of this case. . It is not clear whether Alpine contends also that the Hanson 164 patent lacks novelty under 35 U.S.C. §§ 101 and 102(a). In any case, as will appear from our discussion of the obviousness issue under § 103, the trial court found, with which we agree, that it did have novelty. Sections 101, 102(a) and 103 provide as follows: § 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or § 103. Conditions for patentability; non-obvious subject matter A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. . 35 U.S.C. § 112 provides: § 112. Specification The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode" } ]

[ { "docid": "18891319", "title": "", "text": "the Supreme Court has only recently re-affirmed its adherence to the traditional analysis. Massachusetts Board of Retirement v. Murgia, - U.S. -, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Since the class of those working poor who have more than $80 a month in work expenses does not constitute a suspect class, we conclude that the state classification should be examined under the rational basis standard. This standard requires that the “legislative classification must be sustained unless it is ‘patently arbitrary’ and bears no rational relationship to a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973). So long as the classification does bear a rational relationship to a legitimate governmental interest, the constitutionality of the statute’s discrimination will be presumed “unless [it] trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion or alienage.” City of New Orleans v. Dukes, - U.S. -, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). Plaintiffs have introduced voluminous studies of related programs contending that these studies indicate that the maximum limit on work expenses set by New York State serves as a work disincentive and in fact contributes to family disintegration. These studies, however, are not relevant to our analysis. For, as plaintiffs themselves admit, “[t]he State is not bound to adopt a . scheme to encourage employment, it need not encourage employment at all. The State is not under an obligation to have a Home Relief program at all.....” In the absence of invidious discrimination it is not the function of the judiciary to weigh or balance the side effects of legislation (as plaintiffs would have us do here) against the legitimate purpose sought to be achieved by the legislature. Cf. McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). To do so would mean the re-incarnation of a doctrine that the Supreme Court laid to rest in Dandridge v. Williams, 397 U.S. 471, 484, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970): the doctrine that the Fourteenth Amendment gave the judiciary leave to" } ]

[ { "docid": "15661761", "title": "", "text": "to purchase royalty oil. 476 F.Supp. 668, at 676 (N.D.Ind.1979). Since this challenge is to federal, and not state, power, the Fifth Amendment is the proper touchstone for our analysis. See Shapiro v. Thompson, 394 U.S. 618, 641-2, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969). The United States Supreme Court’s approach to Fifth Amendment equal protection claims has, however, always been precisely the same as its approach to Fourteenth Amendment equal protection claims, see, e. g., Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), so that cases considering equal protection challenges to state regulations are instructive in our analysis. At the outset, we must point out that economic discrimination as alleged here, where neither fundamental rights nor suspect classifications are involved, is entitled only to the mildest review. See U. S. v. Weatherford, 471 F.2d 47, 51 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2144, 36 L.Ed.2d 695 (1973). Legislative perfection in making a statutory classification is neither possible nor necessary, Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), and the classification will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961). Moreover, as the party challenging the regulation, plaintiff has the burden of showing that the geographic divisions are wholly arbitrary. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973). Plaintiff has not carried that burden in this case. The implementation of the O’Mahoney Amendment must be viewed in the context of the MLA as a whole. The marketing of royalty oil is a relatively small portion of administering the Act, and the Area boundaries were drawn rationally to distribute those administrative tasks entrusted under the Act to the Conservation Division of the USGS. The boundaries were established by taking into account factors such as workload distribution, geological" }, { "docid": "13445827", "title": "", "text": ". Id. § 6010(1). . Pennhurst State School & Hospital v. Halderman, - U.S. -, 101 S.Ct. 1531, 1547, 67 L.Ed.2d 694 (1981) (Blackmun, J., concurring). . Id. 100 S.Ct. at 1542. . Pub.L. No. 93-87, § 165(b), as amended by Pub.L. No. 93-643, § 105. . H.Rep. No. 93-118, reprinted in [1973] U.S. Code Cong. & Ad.News 1859, 1885-86. . Pub.L. No. 93-643, § 105(a). . Pub.L. No. 93-391, reprinted in [1974] U.S. Code Cong. & Ad.News 878, 888-89. . E. g., Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). . Conservation of public resources is a legitimate governmental interest. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Roundtree v. Berger, 420 F.Supp. 282, 284-85 (E.D.N.Y.1976) (three-judge court), aff'd mem, 430 U.S. 912, 97 S.Ct. 1322, 51 L.Ed.2d 590 (1977). . Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976); Albany Welfare Rights Org. Day Care Center, Inc. v. Schreck, 463 F.2d 620, 623 (2d Cir. 1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1972); Morpurgo v. Board of Higher Educ. in City of New York, 423 F.Supp. 704 (S.D.N.Y.1976). . See, e. g., Vanko v. Finley, 440 F.Supp. 656, 663-64 (N.D.Ohio 1977); Snowden v. Birmingham-Jefferson County Transit Auth., 407 F.Supp. 394 (N.D.Ala.1975), aff’d mem, 551 F.2d 862 (5th Cir. 1977). . Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). . American Public Transit Ass'n v. Lewis, No. 80-1497, 655 F.2d 1272 (D.C.Cir. 1981). . See, e. g., Touche Ross & Co. v. Redington, 442 U.S. 560, 577 n.18, 99 S.Ct. 2479, 2489 n.18, 61 L.Ed.2d 82 (1979). . 5 U.S.C. § 706(2)(A). . Plaintiffs’ Brief at 19. . Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). . Id. at 415, 91 S.Ct. at 823. . Id.;" }, { "docid": "22149477", "title": "", "text": "or compelling interest must appear to support the legislative classifications. See e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) ; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). However, in dealing with social or economic legislation or areas where fundamental rights are not involved a greater lati tude is afforded legislative classifications and a statutory classification will not be set aside if a rational basis exists to sustain it. See, e. g., Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 493 (1961). In United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970), an opinion with which we fully agree, the Ninth Circuit determined that shipping or transporting firearms in interstate or foreign commerce under the now repealed 15 U.S.C. § 902(e) was not a basic or fundamental right. Although 18 U.S.C. § 922(h)(1) does not proscribe shipping or transporting firearms (see 18 U.S.C. § 922(g)) but instead prohibits receiving firearms in interstate commerce, it follows, a fortiori, from the Thoresen holding that receiving firearms shipped in interstate commerce is not a basic constitutional right. Therefore, 18 U.S.C. § 922(h)(1) must be upheld if the classification scheme has any rational basis to support it. The Congressional findings and declaration of purpose of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the legislative history of this title amply demonstrate the nexus between" }, { "docid": "6340977", "title": "", "text": "required pursuant to this part to be made to such providers, and for the making of such payments by such agency or organization to such providers.” . The Secretary of HEW at the time of the challenged decision had delegated his functions under the Act to the Commissioner of Social Security. 33 F.R. 5836 (1968). For the validity of such delegation, see Pacific Coast Medical Enterprises v. Califano (C.D.Cal.1977), 440 F.Supp. 296, 305. . §§ 1395g and 1395x(v)(l)(A)(ii); 20 C.F.R. §§ 405.402(b)(1), (2) and 405.454. . 20 C.F.R. § 405.1803. . § 1395oo(a), 42 U.S.C.; 20 C.F.R. § 405.1835. . § 1395oo (f), 42 U.S.C. . Ibid. . The appellant Fairfax Hospital Associates, Inc. is the successor in interest of Commonwealth Doctors Hospital, Inc. . 20 C.F.R. § 405.427(b)(1). . 20 C.F.R. § 405.427(b)(3). . 20 C.F.R. § 405.427(d). . 20 C.F.R. § 405.427(c)(2). . Randolph v. United States (3-judge Ct.N.C. 1967), 274 F.Supp. 200, 204, aff’d, 389 U.S. 570, 88 S.Ct. 695, 19 L.Ed.2d 785 (1968). . § 1395x(v)(l)(A), 42 U.S.C. . See, St. Louis Univ. v. Blue Cross Hosp. Serv. (8th Cir. 1976), 537 F.2d 283, 286, cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584; Whitecliff, Inc. v. United States (1976), 210 Ct.Cl. 53, 536 F.2d 347, cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Chelsea Community Hospital v. Michigan Blue Cross (E.D.Mich.1977), 436 F.Supp. 1050. . Flemming v. Nestor (1960), 363 U.S. 603, at 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435, reh. denied, 364 U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77. . McGowan v. Maryland (1961), 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, cited and quoted in Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491. . Richardson v. Belcher (1971), 404 U.S. 78 at 84, 92 S.Ct. 254, 258, 30 L.Ed.2d 231, quoted with approval in Weinberger v. Salfi (1975), 422 U.S. 749, at 768-769, 95 S.Ct. 2457, 45 L.Ed.2d 522. . Dandridge v. Williams, supra, at 397 U.S. 485, 90 S.Ct. at 1161: See, also, Knebel v." }, { "docid": "17498824", "title": "", "text": "by the Second Circuit Court of Appeals, 507 F.2d 1065 (2d Cir. 1974). In Faraday Wood Judge Lumbard stated: However, even if we adopted the standards of these cases the plaintiffs have failed to show that the city acted in bad faith. AMIH knew that this proposal had to be approved by the New York City Board of Estimate before the parties could enter into a binding contract. The Board of Estimate is a political body so AMIH knew that it would consider expressions of opinion by members of the public. It seems to us that it is a proper exercise of discretion for HDA to terminate a project when it feels that the Board of Estimate is unlikely to approve it because of public protest and political considerations. (507 F.2d at 1072) In Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), the Court held that a neutral policy which had a greater impact on a minority group was not invalid. The zoning laws in the present case are not inherently suspect. To apply the compelling interest test would virtually invalidate all forms of state legislation where people are affected differently. The compelling interest rule was rejected in Village of Belle Terre v. Bo raas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); James v. Valtierra, 402 U.S. 137, 142, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Citizens Comm. for Faraday Wood v. Lindsay, supra; Ranjel v. City of Lansing, 417 F.2d 321 (6th Cir. 1969), cert. denied, 397 U.S. 980, 90 S.Ct. 1105, 25 L.Ed.2d 390 (1969), rehearing denied, 397 U.S. 1059, 90 S.Ct. 1352, 25 L.Ed.2d 680 (1970). It is significant that no attack has been made here on Toledo’s comprehensive zoning ordinance. It was neutral legislation enacted long before the controversy in the present case arose. The constitutionality" }, { "docid": "18906363", "title": "", "text": "the merits of the Feeney case alone. V A state cannot, without justification, classify its citizens by imposing unequal burdens or awards on otherwise equally situated individuals. In cases involving alleged sex discrimination, the majority position on the Supreme Court would seem to permit a classification based on sex only as long as it was founded on a “convincing factual rationale” which goes beyond “archaic and overbroad generalizations” about the roles of men and women. Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975). See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The Massachusetts Veterans’ Preference was not enacted for the purpose of disqualifying women from receiving civil service appointments. Theoretically, women are not barred from qualifying as preferred veterans. Yet, the formula’s impact^ triggered by decades of restrictive federal enlistment regulations, makes the operation of the Veterans’ Preference in Massachusetts anything but an impartial, neutral policy of selection, with merely an incidental effect on the opportunities for women. See, e. g., Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Nor under the circumstances, can the operation of this formula be viewed as an effort by the Commonwealth to set priorities among competing claims for finite state resources. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Rather, the Veterans’ Preference formula is" }, { "docid": "13034649", "title": "", "text": "a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citing Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. at 1724, 1731, 32 L.Ed.2d 285 (1972)); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). Whether defendants’ classifications are unconstitutional turns on the question of reasonableness. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161-62 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). In cases involving economics and social welfare wherein classifications and resultant “imbalanced” treatment occur, the United States Supreme Court looks for links between legitimate governmental interests and the classifications. E.g. Dandridge v. Williams, supra (State regulation placing a maximum ceiling on benefits in the Aid to Families with Dependent Children (AFDC) program was challenged unsuccessfully by large family recipients. Court found the regulation free from invidious discrimination and found it rationally related to the “State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of working poor.” Id. at 486, 90 S.Ct. at 1162); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (State’s decision to provide somewhat lower welfare benefits to AFDC recipients than to the aged and infirm was not invidious or irrational because it is not unreasonable for a state to conclude “that the aged and infirm are the least able of" }, { "docid": "13034648", "title": "", "text": "withdraw from the program). Friedman v. Perales, 668 F.Supp. at 225. The reimbursement system, if not altered, will ultimately have a measurable negative impact on Pennsylvania medicaid recipients because their ready access to quality care will be impaired. This is another reason why the overall system for out-of-state hospitals is violative of the federal law. Fourteenth Amendment Another question before the court is whether Pennsylvania’s disparate treatment constitutes unconstitutional discrimination in violation of WVUH’s equal protection rights under the Fourteenth Amendment. The state has developed a payment methodology in which it classifies hospitals and bases reimbursements on hospitals’ classifications. The method used by the state has resulted in plaintiff being placed in a class in which it receives a considerably lower reimbursement than other hospitals similarly situated but within Pennsylvania’s borders. The court applies a “traditional” equal protection analysis because suspect classifications such as race, religion or national origin are not involved here. “Under ‘traditional’ equal protection analysis, a legislative classification must be sustained unless it is ‘patently arbitrary’ and bears no rational relationship to a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citing Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. at 1724, 1731, 32 L.Ed.2d 285 (1972)); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). Whether defendants’ classifications are unconstitutional turns on the question of reasonableness. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at" }, { "docid": "6340978", "title": "", "text": "Louis Univ. v. Blue Cross Hosp. Serv. (8th Cir. 1976), 537 F.2d 283, 286, cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584; Whitecliff, Inc. v. United States (1976), 210 Ct.Cl. 53, 536 F.2d 347, cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Chelsea Community Hospital v. Michigan Blue Cross (E.D.Mich.1977), 436 F.Supp. 1050. . Flemming v. Nestor (1960), 363 U.S. 603, at 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435, reh. denied, 364 U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77. . McGowan v. Maryland (1961), 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, cited and quoted in Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491. . Richardson v. Belcher (1971), 404 U.S. 78 at 84, 92 S.Ct. 254, 258, 30 L.Ed.2d 231, quoted with approval in Weinberger v. Salfi (1975), 422 U.S. 749, at 768-769, 95 S.Ct. 2457, 45 L.Ed.2d 522. . Dandridge v. Williams, supra, at 397 U.S. 485, 90 S.Ct. at 1161: See, also, Knebel v. Hein (1977), 429 U.S. 288 at 294, 97 S.Ct. 549 at 553, 50 L.Ed.2d 485: “The District Court was correct that the regulations operate somewhat unfairly in ap-pellee’s case. Nevertheless, we are satisfied that they are the product of a valid exercise of the Secretary’s statutory authority. Perhaps it might have been more equitable to allow a deduction for all commuting expenses, or for the expenses of commuting to a training program, or — as the order of the District Court provides — just for such expenses covered by state transportation allowances. But the availability of alternatives does not render the Secretary’s choice invalid.” . Dandridge v. Williams, supra, at 397 U.S. 485, 90 S.Ct. at 1161. . Weinberger v. Salfi, supra, at 422 U.S. 773-780, 95 S.Ct. 2457. . To the same effect, see, Schroeder Nursing Care, Inc. v. Mutual of Omaha Ins. Co. (E.D. Wis.1970), 311 F.Supp. 405, 411 (“The distinction which the regulation draws between the situations of related and non-related organizations has a rational basis.”) Chelsea Community Hospital v. Michigan Blue" }, { "docid": "3296880", "title": "", "text": "The first consists of all residents who are not registered to vote or who have been registered to vote for a period less than three years. The second consists of all residents who have been registered voters for a period of three years or more. Only the latter group of residents is eligible to run for school board. Relying on the decision in Bullock v. Carter, 1972, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92, the district court held that section 7 should be tested under the traditional “rational relationship” formula, see Dandridge v. Williams, 1970, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; McGowan v. Maryland, 1961, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, rather than the more stringent “strict scrutiny” standard, see San Antonio School Bd. v. Rodriquez, 1973, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16; Bullock v. Carter, supra; Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1332, 22 L.Ed.2d 600, or the suggested intermediate test of “substantial relationship in fact.” See Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Frontiero v. Richardson, 1973, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (plurality opinion); Aguayo v. Richardson, 2 Cir. 1973, 473 F.2d 1090, 1108-10; City of New York v. Richardson, 2 Cir. 1973, 473 F.2d 923, 930-31; but compare Village of Belle Terre v. Borass, 1974, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797. We are of the view that the district court erred in its choice of the appropriate standard of review. Though prolix, that portion of the opinion in Bullock v. Carter relied on by the district court warrants repetition in substantial part. The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." }, { "docid": "17858634", "title": "", "text": "U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), unless the classification is based on some more closely scrutinized criterion, such as race or sex, or unless the classification affects a fundamental right or interest. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (sex); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel interstate); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (right to vote); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (race). See generally Gunther, The Supreme Court, 1971 Term — Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). Since in Davis we found the City of Atlanta’s procedures invalid under the traditional “rational relationship” test, we had “no need to decide whether the Constitution accords citizens a fundamental right to municipal water service.” Davis v. Weir, 497 F.2d at 144. Neither party submitted briefs to us arguing for or against a higher level of scrutiny than we applied in Davis. However, Davis characterized the city’s policy as accomplishing “constructive eviction from [tenants’] homes for lack of an essential to existence — water,” 497 F.2d at 145, and quoted approvingly from the district court opinion in Davis that characterized water as an “absolute necessity of life.” Id. at n. 8. Although we do not decide this question, Davis may implicitly mandate a higher level of scrutiny than the rational relationship standard. Because “the importance of a service performed by the State does not determine whether it must be regarded as fundamental” for equal protection purposes, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 30, 93 S.Ct. 1278, 1295, 36 L.Ed.2d 16 (1973), and because even the right to housing, Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), and to welfare benefits, Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), while as crucial to existence as" }, { "docid": "14274933", "title": "", "text": "a legitimate state purpose. 411 U.S. at 55, 93 S.Ct. 1278. Furthermore, although some equal protection claims by prison inmates have involved the denial of rights otherwise secured by the Constitution, see, e. g., Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), prisoner claims do not form an exception to the general rule. In McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), state prisoners challenged as violative of equal protection a New York statute that granted good time credit for the entire period of incarceration to prisoners who were released on bail prior to sentencing, but denied good time credit for time spent in county jails prior to sentencing to those prisoners who could not post bail. Without considering whether plaintiffs possessed a constitutional right to good time credit the Court stated: We do not wish to inhibit state experimental classifications in a practical and troublesome area, but inquire only whether the challenged distinction rationally furthers some legitimate, articulated state purpose. McGinnis, supra, at 270, 93 S.Ct. at 1059. Defendants’ assertion that the distinction drawn between prisoners with short indeterminate sentences and those with longer indeterminate and determinate sentences is rational on its face and therefore warranted dismissal is also without merit. The Supreme Court has on many occasions stated that where reform measures are involved, a state need not choose between curing all evils or none, Dandridge v. Williams, 397 U.S. 471, 486-487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 263 (1955), and that the courts will not impose their judgment as to the appropriate stopping point of remedial measures so long as the line drawn by the state is rationally supportable. Geduldig v. Aiello, 417 U.S. 484, 495, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), several employees of a discount department store prohibited from doing business on Sunday by a state Sunday Closing Law, challenged the statute on equal protection grounds." }, { "docid": "23656364", "title": "", "text": "Thus the classification is permissible under the equal protection clause. Laws are presumed to be constitutional under the equal protection clause, City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985), for the simple reason that classification is the very essence of the art of legislation. See also Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 3567, 49 L.Ed.2d 520 (1976). The legislature must be given latitude to grapple with the practical problems of governance; a court may not void “legislation which it simply deem[s] unwise or [ijnartfully drawn.” United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 175, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980). See also Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). This deferential stance gives way to a rigorous standard of judicial review only when the classification involves a fundamental right or a suspect class. No strict standard of review is implicated here. See McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). Prisoners are not a suspect class. See Thornton v. Hunt, 852 F.2d 526, 527 (11th Cir.1988). The status of incarceration is neither an immutable characteristic, Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973), nor an invidious basis of classification, Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). Moreover, it would be ironic for the law to confer special solicitude upon a class whose members had violated it. See id. at 219 n. 19, 102 S.Ct. at 2396 n. 19 (illegal alienage not a suspect classification where “entry into the class is itself a crime”). Similarly, there is no fundamental right to parole or to release from a sentence of incarceration that has itself been lawfully imposed. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)." }, { "docid": "8726805", "title": "", "text": "(5th Cir.1983). In United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), the Court restated the general principles of equal protection review of economic legislation: In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classi fication has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ‘The problems of government are practical ones and may justify, if they do not require, accommodations — illogical, it may be, and unscientific.’ ... ... [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy. Id. at 175, 101 S.Ct. at 459 (quoting Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970)) (citations omitted). See also Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Sandefur v. Cherry, 718 F.2d 682, 688 (5th Cir.), modified, 721 F.2d 511 (5th Cir.1983). . Exxon Corp. v. Eagerton, 462 U.S. 176,-, 103 S.Ct. 2296, 2308, 76 L.Ed.2d 497 [514] (1983) (quoting Regan v. Taxation With Representation of Washington, 461 U.S. 540, -, 103 S.Ct. 1997, 2002, 76 L.Ed.2d 129 (1983)). . Id. at-, 103 S.Ct. at 2002 (quoting Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S.Ct. 406, 407-08, 84 L.Ed. 590 (1940) (footnotes omitted)). See also Austin v. New Hampshire, 420 U.S. 656, 661-62, 95 S.Ct. 1191, 1195, 43 L.Ed.2d 530 (1975); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 40-41, 93 S.Ct. 1278, 1300-01, 36 L.Ed.2d 16 (1973); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359-60, 93 S.Ct. 1001, 1003-04, 35 L.Ed.2d 351 (1973); Allied Stores of Ohio v. Bowers, 358 U.S." }, { "docid": "7613055", "title": "", "text": "licensing nursing home administrators. The Secretary interpreted the Congressional directive and required the states to create licensing boards without a single profession contributing a majority of members. 45 CFR § 252.10(b)(3). Appellants contend that this interpretation offends due process and equal protection because it requires a licensing procedure of nursing home administrators that differs from the procedure for licensing other professionals which render services covered by the federal assistance program. Nevertheless, it is clear that the due process and equal protection doctrines do not constitute an absolute ban upon classifications. E.g., Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); note, 72 Mich.L.Rev. 508 (1974). This is not a case involving a “suspect classification” (e. g., race, sex and alienage), or a “fundamental right” (e. g., voting, interstate travel and free speech); thus, the classification will be sustained unless it is “ ‘patently arbitrary’ and bears no rational relationship to a legitimate governmental interest.” Fronterio v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973); see, Weinberger v. Salfi, supra. The issue, therefore, is whether the Secretary’s special treatment of boards responsible for licensing nursing home administrators is rationally related to a valid public purpose. San Antonio Ind. Sch. Dist. v. Rodriguez, supra, 411 U.S. at 29-44, 93 S.Ct. 1278. The public purpose or governmental interest sought to be advanced by 42 U.S.C. § 1396g and 45 CFR § 252.10 is the assurance of quality care for the elderly. After conducting extensive hearings Congress determined that the nursing home administrator was the key figure on whom success of a program for the aged depended. It was reasonable, therefore, for Congress to conclude that the licensing of nursing home administrators was essential to assure the quality of care provided in part through federal revenue. Because of the nature of the profession, newly established and dependent upon many health-related disciplines, the licensing board for" }, { "docid": "13445826", "title": "", "text": "the majority opinion in National Sea Clammers, which was written by Justice Powell, the author of the lengthy dissent in Thiboutot. . Maher v. Gagne, 448 U.S. 122, 129 n.11, 100 S.Ct. 2570, 2574 n.11, 65 L.Ed.2d 653 (1980); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 1915, 60 L.Ed.2d 508 (1979). . Pennhurst State School & Hospital v. Halderman, - U.S. -, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981). . 49 U.S.C. § 1601(b)(1) — (3). . Id. §§ 1602, 1604. . Id. § 1607. . 116 Cong.Rec. 34180 (1970) (remarks of Rep. Biaggi). . Id. at 34181 (House), 34952 (Senate). . Pennhurst State School & Hospital v. Halderman, - U.S. -, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981); Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). . 116 Cong.Rec. 34181 (1970) (remarks of Rep. Biaggi). . Pennhurst State School & Hospital v. Halderman, - U.S. -, 101 S.Ct. 1531, 1542, 67 L.Ed.2d 694 (1981). . 42 U.S.C. § 6010. . Id. § 6010(1). . Pennhurst State School & Hospital v. Halderman, - U.S. -, 101 S.Ct. 1531, 1547, 67 L.Ed.2d 694 (1981) (Blackmun, J., concurring). . Id. 100 S.Ct. at 1542. . Pub.L. No. 93-87, § 165(b), as amended by Pub.L. No. 93-643, § 105. . H.Rep. No. 93-118, reprinted in [1973] U.S. Code Cong. & Ad.News 1859, 1885-86. . Pub.L. No. 93-643, § 105(a). . Pub.L. No. 93-391, reprinted in [1974] U.S. Code Cong. & Ad.News 878, 888-89. . E. g., Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). . Conservation of public resources is a legitimate governmental interest. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Roundtree v. Berger, 420 F.Supp. 282, 284-85 (E.D.N.Y.1976) (three-judge court), aff'd mem, 430 U.S. 912, 97 S.Ct. 1322, 51 L.Ed.2d 590 (1977). . Koch v. Yunich, 533 F.2d" }, { "docid": "14272171", "title": "", "text": "the outcome of the litigation. Courts have for centuries possessed disciplinary powers incident to the administration of justice. NAACP v. Button, supra, 371 U.S. at 456, 83 S.Ct. 328 (Justice Harlan dissenting). DR 7-109 C is a proper exercise of such a power. We also reject appellee’s argument that the incidental economic burden placed on some litigants by DR 7-109 C constitutes a violation of the equal protection clause of the fourteenth amendment. Strict scrutiny of a legislative classification is required for equal protection determination only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Classifications in the area of economics and social welfare have been held not to constitute such suspect classifications. Ortwein v. Schwab, 410 U.S. 656, 659, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). In the absence of interference with a fundamental right of access or a suspect classification, the relevant standard of review is the rationality of the New York rule. Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 312, 96 S.Ct. 2562; McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). States have a compelling interest in regulating the conduct of professionals who practice within their borders. The interest in regulating lawyers is especially great because lawyers are essential for the functioning of the administration of justice. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). In New York the legislature has expressly provided that the judiciary has the power to regulate attorneys. People ex rel. Karlin v. Culkin, 248 N.Y. 465, 472-77, 162 N.E. 487 (1928); Judiciary Law § 90(2). Disciplinary Rule 7-109 C was promulgated to insure that judicial proceedings in New York were free of false testimony which" }, { "docid": "2670399", "title": "", "text": "persons with proven work histories of forty-eight months full-time employment in the previous eight years. Supp.App. at 2. . We do not reach the question whether by paying the transitionally needy the full benefits allowable under the general assistance program for three months out of twelve, Pennsylvania should be regarded as totally denying them benefits for the other nine months or merely as reducing benefits within the meaning of Dandridge. . See Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McDonald v. Bd. of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). . See Matthews v. Lucas, 427 U.S. at 510, 96 S.Ct. at 2764; Jimenez v. Weinberger, 417 U.S. 628, 94: S.Ct. 2496, 41 L.Ed.2d 363 (1974); U.S. Dept, of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); U.S. Dept, of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972)." }, { "docid": "13445828", "title": "", "text": "80, 85 (2d Cir. 1976); Albany Welfare Rights Org. Day Care Center, Inc. v. Schreck, 463 F.2d 620, 623 (2d Cir. 1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1972); Morpurgo v. Board of Higher Educ. in City of New York, 423 F.Supp. 704 (S.D.N.Y.1976). . See, e. g., Vanko v. Finley, 440 F.Supp. 656, 663-64 (N.D.Ohio 1977); Snowden v. Birmingham-Jefferson County Transit Auth., 407 F.Supp. 394 (N.D.Ala.1975), aff’d mem, 551 F.2d 862 (5th Cir. 1977). . Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). . American Public Transit Ass'n v. Lewis, No. 80-1497, 655 F.2d 1272 (D.C.Cir. 1981). . See, e. g., Touche Ross & Co. v. Redington, 442 U.S. 560, 577 n.18, 99 S.Ct. 2479, 2489 n.18, 61 L.Ed.2d 82 (1979). . 5 U.S.C. § 706(2)(A). . Plaintiffs’ Brief at 19. . Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). . Id. at 415, 91 S.Ct. at 823. . Id.; United States Lines, Inc. v. Federal Maritime Comm'n, 584 F.2d 519, 526 (D.C.Cir. 1978); Hooker Chemical & Plastics Corp. v. Train, 537 F.2d 620, 630-31 (2d Cir. 1976); Schicke v. Romney, 474 F.2d 309, 315 (2d Cir. 1973); Delaware Citizens for Clean Air, Inc. v. Administrator of U.S. Envt'l Protection Agency, 480 F.2d 972, 976 (3d Cir. 1973); Hospital Ass'n of New York State, Inc. v. Toia, 473 F.Supp. 917, 925 (S.D.N.Y.1979). . Hospital Ass'n of New York State, Inc. v. Toia, 473 F.Supp. 917, 925 n.13 (S.D.N.Y.1979). . Id. at 927. . United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 249 (2d Cir. 1977). . 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); Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); New York Shipping Ass'n v. Federal Maritime Comm'n, 628 F.2d 253, 257-58 (D.C.Cir.1980); National" }, { "docid": "6723196", "title": "", "text": "249.-10(a)(1) (1974). . Sections 1396d(a)(1)-(5). . See § 1396d(a)(6)-(17). . Section 1396d(a)(6) (emphasis added). . District of Columbia Code § 2-711. . Doe v. Beal, 523 F.2d 611, 616 (3d Cir. 1975) (en banc). This phrase was first used in a Social Security Act case dealing with the Aid to Families with Dependent Children (AFDC) provisions of the Act, 42 U.S.C.A. § 601 et seq. (1974). King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). See also New York State Dept. of Social Services v. Dublino, 413 U.S. 405, 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973); Jefferson v. Hackney, 406 U.S. 535, 542, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 478, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). . Section 1396 (emphasis added). . Section 1396a(a)(10); 45 C.F.R. § 249.-10(a)(1) (1974). . Section 1396a(a)(10)(C); 45 C.F.R. § 249.-10(a)(2) (1974). . Section 1396a(a)(13); 45 C.F.R. § 249.10(a) (1974). . Section 1903(e) of the original Title XIX provisions required the participating states to make efforts to broaden “the scope of the care and services made available under the plan” and to liberalize “the eligibility requirements for medical assistance” with a view towards eventually furnishing “comprehensive care and services to substantially all individuals who meet the plan’s eligibility standards with respect to income and resources . . Social Security Amendments of 1965, Pub.L. No. 89-97, § 121, 79 Stat. 350. Faced with the rapidly inflating costs of medical care and services, Congress repealed this section in 1972. Social Security Amendments of 1972, Pub.L. No. 92-603, § 230, 86 Stat. 1410. See Doe v. Beal, supra note 12, at 618 n. 14. . For example, physicians are compensated for cosmetic surgery only when prior authorization is issued by the State agency. D.C. Plan (1974), Supplement to Attachment 3.1-A (Plaintiffs’ Exhibit A), p. 2. . 523 F.2d 611 (3d Cir. 1975) (en banc). . 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). . 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). . Physicians services are defined by reference to" } ]

[ { "docid": "17371142", "title": "", "text": "an agency within the meaning of the Administrative Procedure Act and its injury determination should be set aside as arbitrary, and (3) The Tariff Commission’s determination, insofar as it encompasses Puerto Rican imports, is in clear and unnecessary excess of the competitive injury found to exist. The Appellate Term rejected all three contentions in upholding the Commission’s determination. OPINION As to appellants’ first objection, it is apparent that the Commission did not find that sales of the imported cement at less than fair value were if so faoto injurious to a domestic industry but instead made a separate determination of injury. It is true that the Commission recognized the LTFV aspect of the sales as one factor involved in its determination. But that amounted to no more than giving weight to a consideration which was reasonably, if not necessarily, related to the conditions which it was required to analyze in determining whether there was a likelihood of injury under the statute. We therefore find that the Appellate Term was correct in holding that the Commission did not err in considering the LTFV aspect of the sales as a factor in its determination. With regard to the scope of review of the Commission’s determination, involved in appellants’ charge that the determination here was arbitrary, this court stated in City Lumber Co. v. United States, 59 CCPA 89, 457 F. 2d 991, C.A.D. 1045 (1972): * * * it not judicial function to review or to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 21 CCPA 110, T.D. 46446 (1933), compare United States v. George S. Bush & Co., 310 U.S. 371 (1940). As stated in Kleberg, our review of determinations of injury or likelihood of injury in antidumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion. “No question of law is raised when the exercise of * * * discretion is challenged.” The" } ]

[ { "docid": "18700155", "title": "", "text": "Miller, Judge. This is an appeal from a judgment of the U.S. Customs Court, 483 F. Supp. 312, 84 Cust. Ct. 16, C.D. 4838 (1980), upholding the determination of the U.S. International Trade Commission (ITC) that a domestic industry was not being injured or likely to be injured or prevented from being established by reason of the importation of tools (wrenches, pliers, screwdrivers, and metal-cutting snips and shears) from Japan that were being, or likely to be, sold at less than fair value within the meaning of section 201(a) of the Antidumping Act of 1921, as amended (19 U.S.C. 160(a)). We affirm. The background and relevant facts are thoroughly presented in the opinion of the Customs Court and need not be repeated. In appeals from the Customs Court involving determinations of injury or likelihood of injury in antidumping and countervailing duty cases considered by the Tariff Commission (now the ITC), this court has conducted its review upon the record made before the Commission and has held that such review is limited to determining “whether the Commission has acted within its delegated authority, has correctly interpreted (pertinent) statutory language, and has correctly applied the law.” City Lumber Co. v. United States, 59 CCPA 89, 92, C.A.D. 1045, 457 F. 2d 991, 994 (1972). As to the evidentiary record, the standard of this review has been stated to be whether the Commission’s determination is supported by substantial evidence. City Lumber Co., supra at 95, 457 F. 2d at 996. In Imbert Imports, Inc. v. United States, 60 CCPA 123, 127, C.A.D. 1094, 475 F. 2d 1189, 1192 (1973), the point was made- that even if the Administrative Procedure Act applied (not decided), the Commission’s determination was not arbi trary or an abuse of discretion. However, there appears to be no real difference between such standards. See Imbert Imports, Inc., id., where this court said: In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the chairmans [sic] dissent are not of sufficient moment to establish that the decision of the" }, { "docid": "21870779", "title": "", "text": "the affirmative determination. Accordingly, the determination must be upheld. For it is basic that having been delegated discretionary authority by the Congress, the Commission’s determination may not be disturbed by the court when, as here, it had a rational basis in fact and was not contrary to law. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Suwannee Steamship Co. v. United States, 79 Cust. Ct. 19, 23-24, C.D. 4708, 435 F. Supp. 389 (1977). And since the Commission has been delegated discretionary authority, it is not the function of the court to weigh the evidence considered by the Commission, determine the credibility of the witnesses appearing at the hearing, and substitute its judgment for that of the Commission; indeed, the Commission decision, if rational and not contrary to law, must be upheld by the court even though that decision is not one the court would have reached had the question first arisen in judicial proceedings. See, e.g., Imbert Imports, Inc. v. United States, 60 CCPA 123, 127, C.A.D. 1094, 475 F. 2d 1189 (1973); City Lumber Co. v. United States, 64 Cust. Ct. 826, 832, 834, A.R.D. 269, 311 F. Supp. 340 (1970), aff’d, 59 CCPA 89, supra. [Italic added.] Again, in ASG Industries, Inc., et al. v. United States, 82 Cust. Ct. 101, C.D. 4794, 467 F. Supp. 1200 (1979) (appeal pending), Judge Maletz in a scholarly opinion considered in extenso the scope of review in countervailing duty cases, and alluded to the Commission’s finding of injury under the Antidumping Act (82 Cust. Ct. at 146): Defendant also relies on Pasco Terminals, Inc. v. United States, 80 Cust. Ct. 249, C.R.D. 78-3 (1978), where this court held that the scope of review of an International Trade Commission’s finding of injury under the Antidumping Act was, among other things, arbitrary or capricious, an abuse of discretion, or otherwise contrary to law. But there again, a determination of whether or not there was injury under the law is committed by Congress to the sound discretion of the Commission. Furthermore, under the Commission’s practice, an administrative record" }, { "docid": "21949549", "title": "", "text": "Act is applicable to proceedings under the Antidumping Act of 1921”. Elof Hansson, Inc. v. United States, 43 Cust.Ct. 627, A.R.D. 114, 178 F.Supp. 922 (1959), rev’d on other grounds, United States v. Elof Hansson Inc., 296 F.2d 779, 48 CCPA 91, C.A.D. 771 (1960), cert. den. 368 U.S. 899, 82 S.Ct. 179, 7 L.Ed.2d 95 (1961); see also The Hoenig Plywood Corporation v. United States, 51 Cust.Ct. 336, R.D. 10569 (1963). Without making reference to the foregoing pertinent decisions in its brief or oral argument, appellee nevertheless insists that the Administrative Procedure Act has no applicability to our review of injury determinations of the Tariff Commission. Under the circumstances of this case, we do not deem it necessary to decide whether the Commission’s finding may be set aside under § 1009(e) (B) (1) of the Administrative Procedure Act, since in any event we are not persuaded that such finding is arbitrary, an abuse of discretion or otherwise contrary to law. As stated swpra, recurring or renewed dumping of Portland cement was a causation factor which the Commission properly considered in making its finding. Appellant further argue that the Commission’s finding is “lacking in any supportable evidence”. Such contention overlooks the fact that a Tariff Commission injury investigation is not required to be “on the record”, but rather is authorized to be made upon “such investigation as it [Commission] deems necessary”. 19 U.S.C. § 160(a). Much of the Commission’s information may be confidential and not open to public inspection or judicial review. Under these circumstances, plainly the substantial evidence rule is inappropriate in reviewing injury determinations of the Tariff Commission. Cf. Kleberg & Co., Inc. v. United States, 71 F.2d 332, 21 CCPA 110, T.D. 46446 (1933); but cf. City Lumber Co. et al. v. United States, 64 Cust.Ct. 826, A.R.D. 269, 311 F.Supp. 340 (1970); appeal pending. See also Metzger and Musrey, Judicial Review of Tariff Commission Actions and Proceedings, 56 Cornell L. Rev. 285, 329-330 (1971). (3) Finally, we consider appellants’ contention that these Puerto Rican importations should be exempted from the imposition of dumping duties inasmuch as" }, { "docid": "686304", "title": "", "text": "and that the Commission considered appropriate economic and financial factors in making its negative determination. Accordingly, the Commission’s determination is not arbitrary or capricious, as claimed by plaintiffs. IV We now reach plaintiffs’ contention that the Commission’s injury determination is not supported by substantial evidence. As we have seen, the substantial evidence standard of review has been adverted to by the courts in reviewing the Commission’s findings and determination under the Antidumping Act. See City Lumber, supra, 457 F.2d at 996, 59 CCPA at 95; Imbert Imports, supra, 475 F.2d at 1192, 60 CCPA at 127; Pasco Terminals, Inc., supra, 477 F.Supp. 201, 83 Cust.Ct. at-. Consolo v. Federal Maritime Commission et al., 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), is a leading case defining “substantial evidence”. There, the Supreme Court observed (at 619-20, 86 S.Ct. at 1026): * * * We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. “[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 5 Cir., 275 F.2d 18, 21. [Emphasis added; footnote omitted.] See also Richardson, Secretary of Health, Education, and Welfare v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Applying the above-quoted definition to the record herein, I find that there is substantial evidence supporting the Commission’s negative determination. The" }, { "docid": "686278", "title": "", "text": "Court has repeatedly stressed the broad discretionary authority vested in the Commission to determine the existence or likelihood of injury by reason of LTFV imports and the limited standard of judicial review applicable to the Commission’s determinations. City Lumber Co. et al. v. United States, 457 F.2d 991, 59 CCPA 89, C.A.D. 1045 (1972); Imbert Imports, Inc., et al. v. United States, 475 F.2d 1189, 60 CCPA 123, C.A.D. 1094 (1973), and cases cited therein. In City Lumber, the Court of Customs and Patent Appeals articulated the standard of judicial review applicable to the Commission’s injury determinations under the Antidumping Act as follows (457 F.2d at 994, 59 CCPA at 92): As the Appellate Term opinion observes, under the Antidumping Act Congress delegated to the Commission a broad discretionary power to determine whether an industry is being, or is likely to be, injured by the sale of imports at less than fair value. The courts have a very limited power of review over the Commission’s determinations. It is not the judicial function to review or to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 71 F.2d 332, 21 CCPA 110, T.D. 46446 (1933); compare United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259 (1940). As stated in Kleberg, our review of determinations of injury or likelihood of injury in antidumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion, “No question of law is raised when the exercise of * * * discretion is challenged.” Continuing, the Appellate Court went on to observe (457 F.2d at 996, 59 CCPA at 95): * * * We deem appellants’ admission to show that there was substantial evidence to support the Commission’s determination, which eliminates one of their arguments for its invalidity. Moreover, the substance of this argument, in our view, is that appellants would have us weigh" }, { "docid": "18700156", "title": "", "text": "Commission has acted within its delegated authority, has correctly interpreted (pertinent) statutory language, and has correctly applied the law.” City Lumber Co. v. United States, 59 CCPA 89, 92, C.A.D. 1045, 457 F. 2d 991, 994 (1972). As to the evidentiary record, the standard of this review has been stated to be whether the Commission’s determination is supported by substantial evidence. City Lumber Co., supra at 95, 457 F. 2d at 996. In Imbert Imports, Inc. v. United States, 60 CCPA 123, 127, C.A.D. 1094, 475 F. 2d 1189, 1192 (1973), the point was made- that even if the Administrative Procedure Act applied (not decided), the Commission’s determination was not arbi trary or an abuse of discretion. However, there appears to be no real difference between such standards. See Imbert Imports, Inc., id., where this court said: In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the chairmans [sic] dissent are not of sufficient moment to establish that the decision of the majority was arbitrary. In view of the foregoing, we conclude that the issue before this court in this case is properly stated to be whether the Customs Court correctly held that the Commission’s determination is supported by substantial evidence in the record. This accords with the standard established by Congress in the Trade Agreement Act of 1979, which added a new section 516A to the Tariff Act of 1930, (Public Law 96-39, 93 Stat. 144, 302 (1979)). See also ASG Industries, Inc., supra. Our review of appellants’ arguments and portions of the record relating thereto persuades us that the Customs Court’s holding is correct. In affirming the judgment of the Customs Court, we adopt the court’s opinion as our own, with the single modification that we would state the sole standard of review of factual determinations of injury or likelihood of injury in antidumping cases to be whether the Commission’s determination is supported by substantial evidence. Affirmed. 19 U.S.C. 160(a) provides as follows: (a) Whenever the Secretary of the Treasury .(hereinafter called the Secretary) determines" }, { "docid": "686303", "title": "", "text": "of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, at 146, 59 S.Ct. 754, at 765, 83 L.Ed. 1147 (1939). [Emphasis added; footnote omitted.] In light of the above-cited decisions, it would be impermissible for me to substitute my judgment for that of the Commission or to reweigh the evidence as to specific factual findings. After a careful and searching review of the administrative record, I hold: that the factual findings of the Commission have a rational basis in fact; that the Commission applied the proper legal standards; and that the Commission considered appropriate economic and financial factors in making its negative determination. Accordingly, the Commission’s determination is not arbitrary or capricious, as claimed by plaintiffs. IV We now reach plaintiffs’ contention that the Commission’s injury determination is not supported by substantial evidence. As we have seen, the substantial evidence standard of review has been adverted to by the courts in reviewing the Commission’s findings and determination under the Antidumping Act. See City Lumber, supra, 457 F.2d at 996, 59 CCPA at 95; Imbert Imports, supra, 475 F.2d at 1192, 60 CCPA at 127; Pasco Terminals, Inc., supra, 477 F.Supp. 201, 83 Cust.Ct. at-. Consolo v. Federal Maritime Commission et al., 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), is a leading case defining “substantial evidence”. There, the Supreme Court observed (at 619-20, 86 S.Ct. at 1026): * * * We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229," }, { "docid": "5107204", "title": "", "text": "Commission’s decision. In short, plaintiffs insist that had the Commission concluded that the LTFV imports competed directly with the domestic hand tools, it would have been obligated to find, as a matter of law, that an industry in the United States was being or was likely to be injured. It is evident that plaintiffs’ arguments essentially challenge discretionary findings by the Commission. Fundamentally, it is not the function of the Court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co. et al. v. United States, 59 CCPA 89, C.A.D. 1045, 457 F.2d 991 (1972); Imbert Imports, Inc., et al. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F.2d 1189 (1973). Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary or capricious. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., et al, 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), reh. denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975); Citizens to Preserve Overton Park, Inc., et al. v. Volpe, Secretary of Transportation, et al., 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Addressing the question of the scope and extent of judicial power to set aside the ruling of an administrative agency, the Court of Appeals made this relevant observation in Deutsch v. United States Atomic Energy Commission, 401 F.2d 404, 407 (C.A.D.C.1968): We are urged to overrule the [Atomic Energy] Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and" }, { "docid": "686283", "title": "", "text": "Commission ; indeed, the Commission decision, if rational and not contrary to law, must be upheld by the court even though that decision is not one the court would have reached had the question first arisen in judicial proceedings. See, e. g., Imbert Imports, Inc. v. United States, 475 F.2d 1189 [, 1192] 60 CCPA 123, 127, C.A.D. 1094 (1973); City Lumber Co. v. United States, 64 Cust.Ct. 826, 832, 834, A.R.D. 269, 311 F.Supp. 340 (1970), aff’d, 457 F.2d 991, 59 CCPA 89, supra. [Emphasis added.] Again, in ASG Industries, Inc., et al. v. United States, 467 F.Supp. 1200, 82 Cust.Ct. 101, C.D. 4794 (1979) (appeal pending), Judge Maletz in a scholarly opinion considered in extenso the scope of review in countervailing duty cases, and alluded to the Commission’s finding of injury under the Antidumping Act (467 F.Supp. at 1236-1237, 82 Cust.Ct. at 146): Defendant also relies on Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978), where this court held that the scope of review of an International Trade Commission’s finding of injury under the Antidumping Act was, among other things, arbitrary or capricious, an abuse of discretion, or otherwise contrary to law. But there again, a determination of whether or not there was injury under the law is committed by Congress to the sound discretion of the Commission. Furthermore, under the Commission’s practice, an administrative record is made, hearings are held, cross-examination of witnesses is permitted and specific and detailed findings are made. [Emphasis added.] And in the wide-ranging Trade Agreements Act of 1979 (Pub.L.No.96-39, 93 Stat. 144, enacted July 26, 1979, Congress added a new section 516A to the Tariff Act of 1930 wherein the scope and standards of judicial review in antidumping and countervailing duty cases are specifically addressed. The new section 516A, of course, is not applicable in the present case. Significantly, however, in the Senate Finance Committee’s report (S.Rep.No.96-249, 1st Sess. 251, U.S.Code Cong. & Admin.News 1979, pp. 3, 259) accompanying the bill that was enacted (H.R.4537), Congress stated its understanding of the existing standard of review applicable to determinations" }, { "docid": "686280", "title": "", "text": "the evidence before the Commission. We need cite no authority for the proposition that we cannot do that because in their brief below appellants admit that “the court may neither substitute its judgment in factual matters for that of the Tariff Commission in an injury determination under the Antidumping Act, nor may it weigh the evidence before the Commission * * The Commission is under no obligation either to disclose all of the evidence in its possession nor to state in meticulous detail exactly on what basis it applies that evidence in determining injury or likelihood thereof. This point is, therefore, without merit. [Emphasis added.] The standard of review enunciated in City Lumber was quoted and reaffirmed in Imbert Imports, supra. There, the Appellate Court further stated (475 F.2d at 1192, 60 CCPA at 127): * * * In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the Chairman’s dissent are not of sufficient moment to establish that the decision of the majority was arbitrary. Accordingly, we are satisfied that the Commission here acted within its delegated authority and correctly interpreted and applied the law. In fact, we think, as did the Appellate Term, that the determination would pass the test as not being arbitrary, an abuse of discretion, or contrary to law, even if the more extensive scope of review under the Administrative Procedure Act (the provisions now 5 U.S.C. § 706) were appropriate, as appellant contends. As it is, we make no express holding with regard to the applicability of that Act. [Emphasis added.] Recently, in Pasco Terminals, Inc. v. United States, 477 F.Supp. 201, 83 Cust.Ct. -, C.D. 4823 (1979), the Court addressed the discretionary authority of the Commission in injury determinations under the Antidumping Act and the applicable standard of judicial review. On that aspect of the case, the Court made the following pertinent observations (477 F.Supp. at 220, 83 Cust.Ct. at -): It is therefore apparent from its determination that the Commission properly employed criteria which are relevant to the determination as" }, { "docid": "686277", "title": "", "text": "the argument that this Court’s review is limited to the Commission’s Statement of Reasons. But defendant’s position respecting the scope of review has been consistently rejected by a long and uninterrupted line of authorities. See Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978); Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steeleraft Tools Division, Party-in-Interest), 80 Cust.Ct. 252, C.R.D. 78-5 (1978); Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust.Ct. 256, C.R.D. 78-7 (1978); SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust.Ct. 159, C.R.D. 78-13 (1978), and authorities cited therein. See also Michelin Tire Corporation v. United States, 469 F.Supp. 270, 82 Cust.Ct. -, C.R.D. 79-6 (1979), application for extraordinary writs denied sub nom. United States v. James L. Watson, Judge, United States Customs Court; Michelin Tire Corporation, Party-in-Interest, 66 CCPA -, C.A.D. 1230 (1979). Accordingly, I have carefully reviewed the entire administrative record transmitted to the Court by the Commission, and not merely the Statement of Reasons. OPINION I Our Appellate Court has repeatedly stressed the broad discretionary authority vested in the Commission to determine the existence or likelihood of injury by reason of LTFV imports and the limited standard of judicial review applicable to the Commission’s determinations. City Lumber Co. et al. v. United States, 457 F.2d 991, 59 CCPA 89, C.A.D. 1045 (1972); Imbert Imports, Inc., et al. v. United States, 475 F.2d 1189, 60 CCPA 123, C.A.D. 1094 (1973), and cases cited therein. In City Lumber, the Court of Customs and Patent Appeals articulated the standard of judicial review applicable to the Commission’s injury determinations under the Antidumping Act as follows (457 F.2d at 994, 59 CCPA at 92): As the Appellate Term opinion observes, under the Antidumping Act Congress delegated to the Commission a broad discretionary power to determine whether an industry is being, or is likely to be, injured by the sale of imports at less than fair value. The courts have a very limited power of review over the Commission’s determinations. It is not the judicial function to review or" }, { "docid": "14441803", "title": "", "text": "Secretary of War that certain bridges were an unreasonable obstruction of free navigation. Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435 (1910). These cases are also relied upon in decisions expressing a restriction on this court’s scope of trial in anti-dumping duty cases and will be more thoroughly discussed in the next section of this opinion. For the moment, however, it suffices to say that a study of these decisions reveals them to be of questionable relevance today. B. Dumping Duty In addition to its reliance on restrictions expressed in flexible tariff cases, defendant relies on restrictions expressed in eases involving anti-dumping duty. As mentioned, the assessment of anti-dumping duty is preceded by a dual determination; sales of the importation at less than fair value and resulting injury to a domestic industry. Restrictions on the court’s power to judge the facts of the matter, that is to say, whether sales at less than fair value and injury existed have indeed been expressed and followed. Most recently the restrictions have been expressed in the form of discovery orders which apparently indicate that the object of the discovery is to enable this court to review the record of the International Trade Commission’s injury finding and to decide whether the finding was “among other things, arbitrary, an abuse of discretion or otherwise contrary to law.” Pasco Terminals, Inc. v. United States, 81 Cust.Ct. C.R.D. 78-3 (1978). This reflects a line of decision going back, without clarification, through Imbert Imports, Inc. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F.2d 1189 (1973) and City Lumber Co. v. United States, 59 CCPA 89, 457 F.2d 991, C.A.D. 1045 (1972) to Kleberg & Co. v. United States, 21 CCPA 110, T.D. 46446 (1933). The oft-quoted language of the Kleberg decision reads as follows: It is equally well established by the authorities that if the Secretary of the Treasury has proceeded in the method prescribed by the Congress, we may not judicially inquire into the correctness of his conclusions. The constitutionality of the law under which he proceeds having" }, { "docid": "21870774", "title": "", "text": "of authorities. See Pasco Terminals, Inc. v. United States, 80 Cust. Ct. 249, C.R.D. 78-3 (1978); Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steelcraft Tools Division, Party-in-Interest), 80 Cust. Ct. 252, C.R.D. 78-5 (1978); Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust. Ct. 256, C.R.D. 78-7 (1978); SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust. Ct. 159, C.R.D. 78-13 (1978), and authorities cited therein. See also Michelin Tire Corporation v. United States, 82 Cust. Ct. 308. C.R.D. 79-6, 469 F. Supp. 270 (1979), application for extraordinary writs denied sub nom. United States v. James L. Watson, Judge, United States Customs Court; Michelin Tire Corporation, Party-in-Interest, 66 CCPA 107, C.A.D. 1230 (1979). Accordingly, I have carefully reviewed the entire administrative record transmitted to the court by the Commission, and not merely the statement of reasons. OPINION I Our appellate court has repeatedly stressed the broad discretionary authority vested in the Commission to determine the existence or likelihood of injury by reason of LTFV imports and the limited standard of judicial review applicable to the Commission’s determinations. City Lumber Co. et al. v. United States, 59 CCPA 89, C.A.D. 1045, 457 F. 2d 991 (1972); Imbert Imports, Inc., et al. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F. 2d 1189 (1973), and cases cited therein. In City Lumber, the Court of Customs and Patent Appeals articulated the standard of judicial review applicable to the Commission’s injury determinations under the Antidumping Act as follows (59 CCPA at 92): As the appellate term opinion observes, under the Antidumping Act Congress delegated to the Commission a broad discretionary power to determine whether an industry is being, or is likely to be, injured by the sale of imports at less than fair value. The courts have a very limited power of review over the Commission’s determinations. It is not the judicial function to review or to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 21 CCPA 110, T.D. 46446" }, { "docid": "21870776", "title": "", "text": "(1933); compare United States v. George S. Bush & Co., 310 U.S. 371 (1940). As stated in Kleberg, our review of determinations of injury or likelihood of injury in antidumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion, “No question of law is raised when the exercise of * * * discretion is challenged.” Continuing, the appellate court went on to observe (59 CCPA at 95): * * * We deem appellants’ admission to show that there was substantial evidence to support the Commission’s determination, which eliminates one of their arguments for its invalidity. Moreover, the substance of this argument, in our view, is that appellants would have us weigh the evidence before the Commission. We need cite no authority for the proposition that we cannot do that because in their brief below appellants admit that “the court may neither substitute its judgment in factual matters for that of the Tariff Commission in an injury determination under the Antidumping Act, nor may it weigh the evidence before the Commission * * The Commission is under no obligation either to disclose all of the evidence in its possession nor to state in meticulous detail exactly on what basis it applies that evidence in determining injury or likelihood thereof. This point is, therefore, without merit. [Italic added.] The standard of review enunciated in City lumber was quoted and reaffirmed in Imbert Imports, supra. There, the appellate court further stated (60 CCPA at 127): * * * In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the Chairman’s dissent are not of sufficient moment to establish that the decision of the majority was arbitrary. Accordingly, we are satisfied that the Commission here acted within its delegated authority and correctly interpreted and applied the law. In fact, we think, as did the appellate term, that the determination would pass the test as not being arbitrary, an abuse" }, { "docid": "686282", "title": "", "text": "to whether “injury” or “likelihood of injury” in fact existed. The relative weight it gave to those criteria was a matter of discretion and expert judgment. In sum, the determination and statements of reasons covered all the relevant points and showed a rational and defensible basis for the affirmative determination. Accordingly, the determination must be upheld. For it is basic that having been delegated discretionary authority by the Congress, the Commission’s determination may not be disturbed by the court when, as here, it had a rational basis in fact and was not contrary to law. See, e. g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [, 93 S.Ct. 1241, 36 L.Ed.2d 106] (1971); Suwannee Steamship Co. v. United States, 79 Cust.Ct. 19, 23-24, C.D. 4708, 435 F.Supp. 389 (1977). And since the Commission has been delegated discretionary authority, it is not the function of the court to weigh the evidence considered by the Commission, determine the credibility of the witnesses appearing at the hearing, and substitute its judgment for that of the Commission ; indeed, the Commission decision, if rational and not contrary to law, must be upheld by the court even though that decision is not one the court would have reached had the question first arisen in judicial proceedings. See, e. g., Imbert Imports, Inc. v. United States, 475 F.2d 1189 [, 1192] 60 CCPA 123, 127, C.A.D. 1094 (1973); City Lumber Co. v. United States, 64 Cust.Ct. 826, 832, 834, A.R.D. 269, 311 F.Supp. 340 (1970), aff’d, 457 F.2d 991, 59 CCPA 89, supra. [Emphasis added.] Again, in ASG Industries, Inc., et al. v. United States, 467 F.Supp. 1200, 82 Cust.Ct. 101, C.D. 4794 (1979) (appeal pending), Judge Maletz in a scholarly opinion considered in extenso the scope of review in countervailing duty cases, and alluded to the Commission’s finding of injury under the Antidumping Act (467 F.Supp. at 1236-1237, 82 Cust.Ct. at 146): Defendant also relies on Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978), where this court held that the scope of review of an International Trade Commission’s" }, { "docid": "12861390", "title": "", "text": "Procedure Act is applicable to proceedings under the Antidumping Act of 1921”. Elof Hansson, Inc. v. United States, 43 Cust. Ct. 627, A.R.D. 114, 178 F. Supp. 922 (1959), rev’d on other grounds, United States v. Elof Hansson, Inc., 48 CCPA 91, C.A.D. 771 (1980), cert. den., 368 U.S. 899 (1961); see also The Koenig Plywood Corporation v. United States, 51 Cust. Ct. 336, R.D. 10569 (1963). Without making reference to the foregoing pertinent decisions in its brief or oral argument, appellee nevertheless insists that the Administrative Procedure Act has no applicability to our review of injury determinations of the Tariff Commission. Under the circumstances of this case, we do not deem it necessary to decide whether the Commission’s finding may be set aside under § 1009(e) (B) (1) of the Administrative Procedure Act, since in any event we are not persuaded that such finding is arbitrary, an abuse of discretion or otherwise contrary to law. As stated sufra, recurring or renewed dumping of portland cement was a causation factor which the Commission properly considered in making its finding. Appellants further argue that the Commission’s finding is “lacking in any supportable evidence”. Such contention overlooks the fact that a Tariff Commission injury investigation is not required to be “on the record”, but rather is authorized to be made upon “such investigation as it [Commission] deems necessary”. 19 U.S.C. § 160(a). Much of the Commission’s information may be confidential and not open to public inspection or judicial review. Under these circumstances, plainly the substantial evidence rule is inappropriate in reviewing injury determinations of the Tariff Commission. Cf. Kleberg & Co., Inc. v. United States, 21 CCPA 110, T.D. 46446, 71 F.2d 332 (1933); but cf. City Lumber Co. et al. v. United States, 64 Cust. Ct. 826, A.R.D. 269, 311 F. Supp. 340 (1970); appeal pending. See also Metzger and Musrey, Judicial Review of Tariff Commission Actions and Proceedings, 56 Cornell L.Rev. 285, 329-330 (1971). (3) Finally, we consider appellants’ contention that these Puerto Bican importations should be exempted from the imposition of dumping duties inasmuch as the Commission found likelihood" }, { "docid": "18700157", "title": "", "text": "majority was arbitrary. In view of the foregoing, we conclude that the issue before this court in this case is properly stated to be whether the Customs Court correctly held that the Commission’s determination is supported by substantial evidence in the record. This accords with the standard established by Congress in the Trade Agreement Act of 1979, which added a new section 516A to the Tariff Act of 1930, (Public Law 96-39, 93 Stat. 144, 302 (1979)). See also ASG Industries, Inc., supra. Our review of appellants’ arguments and portions of the record relating thereto persuades us that the Customs Court’s holding is correct. In affirming the judgment of the Customs Court, we adopt the court’s opinion as our own, with the single modification that we would state the sole standard of review of factual determinations of injury or likelihood of injury in antidumping cases to be whether the Commission’s determination is supported by substantial evidence. Affirmed. 19 U.S.C. 160(a) provides as follows: (a) Whenever the Secretary of the Treasury .(hereinafter called the Secretary) determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the U.S. Tariff Commission, and the said Commission shall determine within 3 months thereafter whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States. * * * The U.S. Tariff Commission was subsequently renamed the U.S. International Trade Commission by section 171(a) of the Trade Act of 1974 (19 U.S.C. 2231(a) (1976)). Be novo review by the Customs Court in a countervailing duty case was approved by this court, where the administrative record before the Treasury Department was clearly deficient, in ASG Industries Inc. v. United States, 67 CCPA-, 610 E. 2d 770, C.A.D. 1237 (CCPA 1980). In such a case, this court’s review would be on the record developed before the Customs Court. The Trade Agreements Act of 1979" }, { "docid": "21870775", "title": "", "text": "the limited standard of judicial review applicable to the Commission’s determinations. City Lumber Co. et al. v. United States, 59 CCPA 89, C.A.D. 1045, 457 F. 2d 991 (1972); Imbert Imports, Inc., et al. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F. 2d 1189 (1973), and cases cited therein. In City Lumber, the Court of Customs and Patent Appeals articulated the standard of judicial review applicable to the Commission’s injury determinations under the Antidumping Act as follows (59 CCPA at 92): As the appellate term opinion observes, under the Antidumping Act Congress delegated to the Commission a broad discretionary power to determine whether an industry is being, or is likely to be, injured by the sale of imports at less than fair value. The courts have a very limited power of review over the Commission’s determinations. It is not the judicial function to review or to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 21 CCPA 110, T.D. 46446 (1933); compare United States v. George S. Bush & Co., 310 U.S. 371 (1940). As stated in Kleberg, our review of determinations of injury or likelihood of injury in antidumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion, “No question of law is raised when the exercise of * * * discretion is challenged.” Continuing, the appellate court went on to observe (59 CCPA at 95): * * * We deem appellants’ admission to show that there was substantial evidence to support the Commission’s determination, which eliminates one of their arguments for its invalidity. Moreover, the substance of this argument, in our view, is that appellants would have us weigh the evidence before the Commission. We need cite no authority for the proposition that we cannot do that because in their brief below appellants admit that “the court may neither substitute its judgment in factual matters for that of the Tariff" }, { "docid": "686279", "title": "", "text": "to weigh the evidence before the Commission or to question the correctness of findings drawn therefrom. Kleberg & Co. (Inc.) v. United States, 71 F.2d 332, 21 CCPA 110, T.D. 46446 (1933); compare United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259 (1940). As stated in Kleberg, our review of determinations of injury or likelihood of injury in antidumping cases does not extend beyond determining whether the Commission has acted within its delegated authority, has correctly interpreted statutory language, and has correctly applied the law. As indicated in the Bush opinion, “No question of law is raised when the exercise of * * * discretion is challenged.” Continuing, the Appellate Court went on to observe (457 F.2d at 996, 59 CCPA at 95): * * * We deem appellants’ admission to show that there was substantial evidence to support the Commission’s determination, which eliminates one of their arguments for its invalidity. Moreover, the substance of this argument, in our view, is that appellants would have us weigh the evidence before the Commission. We need cite no authority for the proposition that we cannot do that because in their brief below appellants admit that “the court may neither substitute its judgment in factual matters for that of the Tariff Commission in an injury determination under the Antidumping Act, nor may it weigh the evidence before the Commission * * The Commission is under no obligation either to disclose all of the evidence in its possession nor to state in meticulous detail exactly on what basis it applies that evidence in determining injury or likelihood thereof. This point is, therefore, without merit. [Emphasis added.] The standard of review enunciated in City Lumber was quoted and reaffirmed in Imbert Imports, supra. There, the Appellate Court further stated (475 F.2d at 1192, 60 CCPA at 127): * * * In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the Chairman’s dissent are not of sufficient moment to establish that the decision of the" }, { "docid": "21870777", "title": "", "text": "Commission in an injury determination under the Antidumping Act, nor may it weigh the evidence before the Commission * * The Commission is under no obligation either to disclose all of the evidence in its possession nor to state in meticulous detail exactly on what basis it applies that evidence in determining injury or likelihood thereof. This point is, therefore, without merit. [Italic added.] The standard of review enunciated in City lumber was quoted and reaffirmed in Imbert Imports, supra. There, the appellate court further stated (60 CCPA at 127): * * * In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the Chairman’s dissent are not of sufficient moment to establish that the decision of the majority was arbitrary. Accordingly, we are satisfied that the Commission here acted within its delegated authority and correctly interpreted and applied the law. In fact, we think, as did the appellate term, that the determination would pass the test as not being arbitrary, an abuse of discretion, or contrary to law, even if the more extensive scope of review under the Administrative Procedure Act (the provisions now 5 U.S.C. 706) were appropriate, as appellant contends. As it is, we make no express holding with regard to the applicability of that act. [Italic added.] Recently, in Pasco Terminals, Inc. v. United States, 83 Cust. Ct. 65, C.D. 4823, 477 F. Supp. 201 (1979), the court addressed the discretionary authority of the Commission in injury determinations under the Antidumping Act and the applicable standard of judicial review. On that aspect of the case, the court made the following pertinent observations (83 Cust. Ct. at 87): It is therefore apparent from its determination that the Commission properly employed criteria which are relevant to the determination as to whether “injury” or “likelihood of injury” in fact existed. The relative weight it gave to those criteria was a matter of discretion and expert judgment. In sum, the determination and statements of reasons covered all the relevant points and showed a rational and defensible basis for" } ]

[ { "docid": "7090619", "title": "", "text": "a proceeding before the United States Tax Court or a civil action by a Government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action. 28 U.S.C. § 1478(a). Two of the restrictions on removability are relevant. First, only “civil actions” may be removed. Second, actions by “governmental units to enforce their police or regulatory powers” are not removable. After considering these limitations, we conclude that NLRB backpay liquidation actions are not removable. A. Removal Limited to Civil Actions The bankruptcy removal statute is patterned on the district court removal statute, 28 U.S.C. § 1441. We agree with the editors of Collier on Bankruptcy that the term “civil action” as used in the statute should be read in light of the history and context of § 1441. 1 Collier on Bankruptcy (15th Ed.) ¶ 3.01 at 3-70, 3-71. The Collier editors concluded that in light of the historical use of “civil action” in connection with § 1441, “It is unlikely, that a ‘civil proceeding’ encompasses, for example, a proceeding before the National Labor Relations Board or other administrative agency.” Id. ¶ 3.01 at 3-71. We reach the same conclusion. While resort to court proceedings is required for execution of the enforced order, see 29 C.F.R. § 101.15 (NLRB Rules and Regulations), we find it significant that no private action arises under the Labor Act. See Amalgamated Workers v. Edison Co., 309 U.S. 261, 265, 60 S.Ct. 561, 563, 84 L.Ed. 738 (1940). Thus the NLRB is not functionally a forum where private parties may present labor disputes. Rather the NLRB determines which complaints it will act upon in its own name in furthering the policies of the federal labor laws. Adams suggests that the term “civil action” as used, in § 1478 must be construed against the NLRB as being narrower in meaning than the term “civil proceeding.” Brief for Appellees at 18. While there may be significance in the distinction between “civil proceedings”" } ]

[ { "docid": "23289747", "title": "", "text": "while serving as general counsel to the South Carolina Real Estate Commission, drafted the SCTSA; and Aleta Pillick, an attorney who, while in her former employ with the South Carolina Tax Commission, investigated the LTPs and concluded that they were not timeshares. By admitting this evidence, the district court treated the proper, interpretation of the relevant statutory provision, S.C.Code Ann. § 27-32-10(9), as a matter properly resolved by the jury. As we make clear in the text, this question is purely one of law and is properly resolved by the court; indeed,' the proper resolution of this question mandates judgment for appellees, leaving nothing for the jury to determine. Moreover, even were there a material question of fact relating to the duration of the LTPs, it would still be error for the district court to have allowed the testimony of the witnesses listed above into evidence. Expert testimony as to the proper interpretation of applicable domestic law is inadmissible. Adalman v. Baker, Watts & Co., 807 F.2d 359, 366-67 (4th Cir.1986). ”[I]t is the responsibility — and the duty — of the court to state to the jury the meaning and applicability of appropriate law, leaving to the jury the task of determining the facts which may or may not bring the challenged conduct within the scope of the court's instruction as to the law.” Id. at 366. See Fed.R.Evid. 702 (expert testimony is admissible to the extent that it \"will assist the trier of fact to understand the evidence or to determine a fact in issue” (emphasis added)). . Plaintiffs raise, in addition, two legal arguments with regard to the district court's handling of their common law fraud claim against DH & S. They first argue that the district court's jury instruction misled the jury with respect to the applicable statute of limitation. North Carolina law requires that an action for fraud be brought within three years of the accrual of the cause of action; \"the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.”" }, { "docid": "20150126", "title": "", "text": "are here concerned is one of trespass quare clausum fregit. The plaintiff alleges possession of the-premises in question. She is not seeking to-dispossess anyone, not even the real defendant Camp Manufacturing Company. She only asks damages for an alleged wrongful trespass on the premises in her possession, and her recovery cannot exceed the amount sued for, $3,000. This demand is made solely against the Camp-Manufacturing Company, and nothing is. asked against the removing defendants. They, along with Santee River Cypress Lumber Company, a local defendant, are in the case voluntarily, or because of a request from the South Carolina Public Service Authority, which in turn is in at the-request, so it is said, of the Camp Manufacturing Company, the real defendant in interest so far as the plaintiff is concerned. The plaintiff, if she desired to do so, could not maintain an action against the remov ing defendants, or against the South Carolina Public Service Authority, because of alleged tortious acts - on the part of the defendant Camp Manufacturing Company. There is no contention that the plaintiff was a party to the contract of warranty mentioned in the petition for' removal, or to any other contract that may have been entered into by any of the defendants, either among themselves or with a third party, nor has it been made to appear that any contract relied upon by the removing defendants was made for the benefit of the plaintiff, or that she has any rights thereunder. It is true that Rule 22 of the Circuit Courts of South Carolina permits a grantor of real estate when he is vouched by his grantee, after a suit brought against his grantee “to recover the possession of real estate”, to apply to a circuit judge for permission to come in and make such additional defenses to the action brought against his grantee as he may desire. This applies only to suits to recover possession of real estate and not to suits for damages for alleged wrongful trespasses thereon. It is also true that a statute of South Carolina, Section 489 of the" }, { "docid": "18780170", "title": "", "text": "136, 148-149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); Seafarers International Union of North America v. United States Coast Guard, 736 F.2d 19, 26-27 (2d Cir.1984). For these reasons and for the reasons noted in the text, particularly the opening statement by counsel for Beker limiting the request for preliminary injunctive relief to the § 362 claim and the assertion of harm to the estate through detriment to its administration and protection of its assets, those issues are not addressed by us. Nor has any claim been made that the Florida statutes, as they apply to trucking phosphate on I-75, are preempted by federal legislation. See United States v. State of Connecticut, 566 F.Supp. 571, 576 (D.Conn.), aff’d 742 F.2d 1443 (2d Cir.1983). . In seeking abstention, the County principally relies on In re Historic Lower Mill Associates, 49 B.R. at 67-68, where the debtor sought an order enjoining a village from continuing a state court action to restrain the debtor from using real property without a required certificate of occupancy. In denying the motion the court held that the § 362(b)(5) exemption of enforcement of judgments obtained by a governmental unit to enforce its police or regulatory power from the automatic stay indicated the impropriety of such an injunction. It further relied on In re Cousins Restaurants Inc., 11 B.R. 521, 8 B.C.D. 15, 4 C.B.C.2d 973 (Bankr.W.D.N.Y.1981) which precluded removal of such an action. In dicta, the court referred to 28 U.S.C. § 1334(c)(2). The relevance of that reference is not clear from the opinion unless the court was addressing a request to compel the village to bring its state court injunction proceeding before the bankruptcy court. . The County and Commission assert that since the instant Proceeding before the Commission was not brought against Beker but initiated by it with the filing of the 1983 ADA, it is not subject to the automatic stay which bars only acts against the debtor or its property. Beker, relying on Association of St. Croix Condominium Owners v. St. Croix Hotel Corporation, 682 F.2d 446 (3d Cir.1982), asserts that the" }, { "docid": "18565415", "title": "", "text": "73 L.Ed.2d 598 (1982). In In Re: Geffken, 43 B.R. 697 (Bkrtcy. N.D.Ohio, 1984), the Court stated as follows: It follows that this court cannot have jurisdiction over an action purportedly removed to it under the no longer effective 28 U.S.C. § 1478. Furthermore, the court finds that there is no other statute which would confer jurisdiction on this Court by removal. The 1984 Act does provide for the removal to the district court of actions related to bankruptcy cases. See 28 U.S.C. § 1452(a) as enacted by section 103 of the 1984 Act, but there is no provision for the removal of actions to the bankruptcy court. The bankruptcy court acquires jurisdiction over an action only by referral from the District Court. Accordingly, this bankruptcy court does not have the authority to assume jurisdiction over this civil action ... if plaintiff wishes this court to hear said action then it must move the district court for an order referring to this court as provided by 28 U.S.C. § 157(c)(2). 43 B.R. at 697. Echoing these cases is In Re: Allen County Bank and Trust Co., v. Valvmatic International Corporation, 51 B.R. 578 (N.D.Indiana 1985). Valvmatic involved the removal of a state court suit, concerning the interpretations of a real estate contract; the action was removed to the Bankruptcy Court and subsequently the Bankruptcy Court ordered all proceedings stayed until the District court could rule on the matter of removal pursuant to 28 U.S.C. § 1452. In Valvmatic, District Judge Lee held that where the complaint is served in a state court action after bankruptcy was filed, § 1452 operates to provide a debtor with an option of where to proceed with the defense of the suit. Judge Lee noted that § 1452, however, does not operate to obviate the requirement that a debtor defend an action begun after the debtor filed bankruptcy. Thus, the Court agreed with the conclusion of Chart House that the § 1446 time limit applies to § 1452 and therefore the debtor had 30 days after service of the complaint to file its petition for" }, { "docid": "7716810", "title": "", "text": "District of Illinois. (8) District of Minnesota, District of North Dakota, District of South Dakota. (9) Central District of California. (10) District of Colorado and District of Kansas. (28 U.S.C. § 581). . The referee’s dual role of administrator and judge under the Bankruptcy Act of 1898 was the subject of much criticism. See Report of Commission on the Bankruptcy Laws of the United States, H.R.Doc. No. 93-137, 93d Cong., 1st Sess., Pt. I, p. 93. . In re Gusam Restaurant Corporation, 32 B.R. 832, 10 B.C.D. 1320 (Bkrtcy. ED NY 1983), and In re Nikron, Inc., 27 B.R. 773, 10 B.C.D. 335 (Bkrtcy. ED MI 1983). Bankruptcy Rule 2015 requires the debtor to file periodic reports and many districts use case administrators to monitor chapter 11 cases. In the Eastern District of North Carolina, there is no case administrator. . This district presently has 250 pending chapter 11 cases of which less than 5% have active creditors’ committees. . The debtor’s weapons include: the automatic stay (11 U.S.C. § 362(a)); the ability to operate (11 U.S.C. §§ 1107-1108); use of collateral (11 U.S.C. § 363); ability to pledge collateral (11 U.S.C. § 364(d)); turnover power (11 U.S.C. § 542); \"lien-free\" post-bankruptcy assets (11 U.S.C. § 552); avoiding powers (11 U.S.C. § 1107); pre-bankruptcy setoff penalty (11 U.S.C. § 553); assessing costs against secured creditors (11 U.S.C. § 506(c)); and the “cram-down\" (11 U.S.C. § 1129(b)). .The secured creditor’s weapons include: the Fifth Amendment to the U.S. Constitution; the right to ask for adequate protection (11 U.S.C. § 361); the right to an expedited hearing on a motion to lift the automatic stay (11 U.S.C. § 362(d) and (e), Bankruptcy Rule 4001(b)); ability to request a limitation on use of collateral (11 U.S.C. § 363(e)); automatic prohibition of debtor’s use of \"cash collateral” (11 U.S.C. § 363(c)(2)); appointment of a trustee or examiner (11 U.S.C. § 1104); dismissal or conversion (11 U.S.C. § 1112); right to vote against plan (11 U.S.C. § 1126); objections to confirmation (11 U.S.C. § 1128(b)); and right of creditor to propose plan (11 U.S.C. §" }, { "docid": "1073499", "title": "", "text": "FmHA has not filed any financing statement with the Darlington County Clerk of Court or the South Carolina Secretary of State, relating to a security interest in milk or milk proceeds. Since the filing of the Flowers’ Chapter 11 petition on March 8, 1984, FmHA has been paid through the assignment of milk proceeds, directly from Sumter Dairies, Inc., a total of $90,876. CONCLUSIONS OF LAW I There is no dispute that the claim of FmHA to real estate is totally unsecured; therefore, the lien supporting the claim is void. 11 U.S.C. § 506(a), (d). II Defendants only assert a security interest in the milk and milk proceeds produced post-petition. The right to future milk proceeds is a contract right. S.C.Code § 36-9-106 (1976, as amended) . The definition of “security interest” includes any interest of a buyer of accounts, chattel paper, or contract rights. Section 36-1-201(37). Chapter 9 of Title 36 of the South Carolina Code governing security interest in goods coyers the assignment in question because the assignment embraces contract rights. Section 36-9-102(l)(a). As the assignment in question is governed by Chapter 9 of Title 36 of the South Carolina Code, a financing statement should have been filed in order to perfect FmHA’s security interest in milk and milk proceeds. In re Liles and Raymond, 24 B.R. 627 (Bankr.M.D.Tenn.1982). “As a perfected judgment lien creditor, under South Carolina law, [the trustee's] lien is superior to FmHA’s unperfected security interest. S.C.Code § 36-9-301 (1976).” In re MSC, Inc., 54 B.R. 650 (Bankr.D.S.C.1985). The exception to the filing of a financing statement created by § 36-9-302(l)(d) does not apply in this proceeding because the contract rights assigned to FmHA are significant rights. As the FmHA has been receiving approximately twelve (12%) percent of the debtors’ total monthly gross income from the sale of milk, the amount is significant as a matter of law. Matter of Bindl, 13 B.R. 148 (Bankr.W.D.Wis.1981). The reasoning of Bindl: Milk proceeds checks are regularly subject to assignment in varying amounts as the facts of this case demonstrate. First, the presence of subsequent transferees is common." }, { "docid": "4737473", "title": "", "text": "other than a proceeding before the United States Tax Court or a civil action by a Government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action. (b) 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 under this subsection remanding a claim or cause of action, or a decision not so remanding, is not reviewable by appeal or otherwise. Once removal has been effected, the general change of venue provisions of 28 U.S.C. §§ 1475, 1477 are applicable. 1 Collier on Bankruptcy, ¶ 3.01 at 3-73 (15th ed. 1983). In Stamm v. Rapco Foam, Inc., 21 B.R. 715 (Bkrtcy.W.D.Pa.1982), the plaintiff had filed a complaint against the defendant in the United States District Court for the Western District of Pennsylvania. Thereafter, the defendant filed a petition under chapter 11 of the Code in South Carolina. The defendant-debtor then filed an application for removal in the United States Bankruptcy Court for the Western District of Pennsylvania seeking to remove the district court action to the bankruptcy court for the Western District of Pennsylvania. The defendant-debtor also filed in the bankruptcy court for the Western District of Pennsyl vania a motion to transfer the district court action to the United States Bankruptcy-Court for the District of South Carolina. The bankruptcy court for the Western District of Pennsylvania, is transferring the case to the bankruptcy court of South Carolina, held: The local bankruptcy court is the most convenient court to receive removal petitions and acts as the first court to review them. If it is also the “home” court [where the bankruptcy case was commenced], it will decide whether to hear the matter or remand it to the district court pursuant to Section 1478(b). If the local bankruptcy court is not the “home” court, it should transfer the case to the “home” court. 21 B.R. at 724, 25. We" }, { "docid": "6822077", "title": "", "text": "case filed in another district. In the instant case it would not be appropriate for this Court to lift the automatic stay of an equal court in South Carolina and allow the Plaintiffs to proceed to suit against the Debtor. This would destroy any attempts by the Bankruptcy Court for the District of South Carolina to consistently administer the Debtor’s bankruptcy case which was originally filed in that district. We would point out that the initial consolidation of the numerous adversary cases involving the Debtor in the “home” bankruptcy court is similar to the scheme contemplated for Multi-District Litigation found at Section 1407 of Title 28, which provides for the consolidation of cases for the purpose of pre-trial proceedings from multiple districts involving the common questions of fact. The purpose of this procedure, of course, is to ease the administration and to prevent inconsistent results in these multi-district cases. In this case, there appears to be only one $1,000,000.00 insurance policy to satisfy all the claims, and it makes sense to allow one court to control the claims of cases related to that asset rather than to allow the first Plaintiff to obtain a judgment to satisfy its claims. The insurance policy appears to be the only resource available to satisfy these proven claims. In this regard Section 1471(e) of Title 28 states: (e) the bankruptcy court in which a case under title 11 is commenced shall have exclusive jurisdiction of all the property, wherever located, of the debtor, as of the commencement of such case. 4. Should this Court remove this proceeding to the Bankruptcy Court for the District of South Carolina? Removal is governed by Section 1478 of Title 28. That section states: (a) A party may remove any claim or cause of action in a civil action, other than a proceeding before the United States Tax Court or a civil action by a government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have such jurisdiction over such claim" }, { "docid": "13295554", "title": "", "text": "any equitable ground. An order under this subsection remanding a claim or cause of action, or a decision not so remanding is not reviewable by appeal or otherwise. “A prerequisite for removal under section 1478 is that the bankruptcy court have jurisdiction over the claim or cause of action sought to be removed.” In re Mansen, 20 B.R. 391, 393 (Bkrtcy.D.Mass.1982). See also Flint v. Speir Insurance Agency, Inc., 33 B.R. 814 (D.C.D.Nev.1983). George Seybolt argues that the decision of the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) invalidated § 241(a) of the Bankruptcy Reform Act in its entirety, which added §§ 1471-1482 to Title 28 of the United States Code, and thus this Court no longer has the power to remove this case from the state court. However, despite the broad characterization of the issue by the plurality opinion in Northern Pipeline, appellate courts which have interpreted that decision have virtually unanimously held that the only issue decided by the Supreme Court in Northern Pipeline concerned the jurisdiction of bankruptcy courts under 28 U.S.C. § 1471(c) as enacted in § 241(a) of the Bankruptcy Reform Act. See In re Kaiser, 722 F.2d 1574 (2nd Cir.1983); In re Braniff Airways, Inc., 27 B.R. 231 (Bkrtcy.N.D.Tex.1983), aff'd, 700 F.2d 214 (5th Cir.1983), cert. denied, — U.S. -, 103 S.Ct. 2122, 77 L.Ed.2d 1302; White Motor v. Citibank, N.A., 704 F.2d 254 (6th Cir.1983); In re Hansen, 702 F.2d 728 (8th Cir.1983); In re South Portland Shipyard and Maine Railways Corp., 32 B.R. 1012, 10 B.C.D. 1385 (D.C.D.Me.1983); and In re Romeo J. Roy, 32 B.R. 1008, 10 B.C.D. 1392 (D.C.D.Me.1983). But see Rhodes v. Stewart, 705 F.2d 159 (6th Cir.1983) (section 1471 declared unconstitutional in toto in Northern Pipeline) (dicta). Those decisions which hold that 28 U.S.C. § 1471 was not invalidated in its entirety apply a fortiori in support of the continued vitality of 28 U.S.C. § 1478. See In re Metal Center, Inc., 31 B.R. 458 (Bkrtcy.D.Conn.1983). This reading of the Northern Pipeline decision" }, { "docid": "21640347", "title": "", "text": "Property at the foreclosure sale for $125,000. In December 1999, Private Mortgage sold the Property on a best efforts basis for $60,000 to a third party, the only party expressing any interest in the Property. Private Mortgage subsequently brought the present civil action in South Carolina state court against Hotel and Club Associates, Incorporated and Hinds (collectively the Defendants). The complaint alleged two claims — professional negligence . and negligent misrepresentation.. , Only the negligent misrepresentation claim is at issue in this appeal. With respect to that claim, Private Mortgage primarily alleged that the Defendants’ appraisal of the “as is” market value of the Property at September 10, 1997, as stated in the Appraisal Report, constituted a negligent misrepresentation. The Defendants removed the action to the United States District Court for the District of South Carolina on the basis of diversity jurisdiction. 28 U.S.C. § 1332. The case proceeded to trial by a jury on February 27, 2001. At the close of Private Mortgage’s evidence, the Defendants moved for judgment as a matter of law with respect to both claims. Fed.R.Civ.P. 50(a). The Defendants, inter alia, sought judgment as a matter of law on the negligent misrepresentation' claim on the ground that a professional real estate appraiser’s appraisal of the market value of a parcel of real property is not actionable as a negligent misrepresentation under South Carolina common law. The district court granted the motion with respect to the professional negligence claim, but denied it with respect to the negligent misrepresentation. claim. At the close of. all evidence, the Defendants renewed their motion.for judgment as a matter of law with respect to the negligent misrepresentation claim, but the district court again denied the motion. Id. The jury found in favor of Private Mortgage on the negligent misrepresentation claim, and, although the jury found that Private Mortgage had suffered $57,500 in damages, the jury determined that the De-, fendants and Private Mortgage were equally at fault in causing such damages. Accordingly, the district court then applied South Carolina’s comparative fault rule to reduce the verdict in favor of Private Mortgage" }, { "docid": "23289745", "title": "", "text": "securities law was not squarely raised, compare Central Bank of Denver,-U.S. at--, 114 S.Ct. at 1455 (noting that \"an aider and abettor of a criminal violation of any provision of the 1934 Act, including § 10(b), violates 18 U.S.C. § 2\"), the state appellate court in Williams strictly construed criminal liability under the state securities law. We believe that North Carolina courts would not construe the analogous civil liability significantly more broadly in this respect. . Section 27-32-10(8) provides for an analogous definition for “vacation time sharing ownership plan” which requires that owners receive an undivided ownership interest in, as well as the right to use, the accommodations and/or facility in question. . We do not mean for our citation to S.C.Code Ann. § 32-3-10(5) to imply that that provision of that statute of frauds would apply to contracts regarding timeshare purchases. See S.C.Code Ann. § 32-3-10(4) (requiring that “any action ... brought ... [t]o charge any person upon any contract or sale of lands, tenements or heredita-ments or any interest in or concerning them” be in writing); id. § 27-35-20 (requiring that ”[a]ny agreement for the use or occupation of real estate for more than one year” be in writing); Player v. Chandler, 299 S.C. 101, 382 S.E.2d 891, 894 (1989) (suggesting that, in an action brought by lessees against lessors regarding oral modifications of a written lease contract, S.C.Code Ann. §§ 32-3-10(4), 32-3-10(5), and 27-35-20 might all have applicability). We wish only to note that the concept that a contract that lasts only for a person’s life is not considered to be a contract that necessarily extends for any length of time is quite common in our law and that, therefore, it is not unreasonable to expect that, had South Carolina’s legislature intended to regulate timeshares that are keyed to the holder’s life, it would have made that intention explicit in the statute. .We feel compelled to note a grave error on the part of the trial court. The district court allowed into evidence the testimony of two “expert witnesses\" called by DH & S: David Martin, who," }, { "docid": "13941100", "title": "", "text": "S.Ct. 1035, 71 L.Ed.2d 318 (1982). The question was whether the automatic stay prevailed over a Missouri law empowering the State to operate and liquidate insolvent grain warehouses. The court found that the state’s grain laws, “although regulatory in nature, primarily relate to the protection of the pecuniary interest in the debtor’s property and not to matters of public safety and health,” and thus did not fall within the § 362(b)(4) exemption of the automatic stay. Id. at 776. This strongly suggests that regulatory action, not pecuniary in nature, concerning public safety and health would be exempt from the automatic stay. In a case predating the new Bankruptcy Code, the District Court of Massachusetts held that the bankruptcy court lacked authority to grant a preliminary injunction enjoining the city licensing board from enforcing the suspension of liquor licenses held by the debtors. Colonial Tavern, Inc. v. Byrne, 420 F.Supp. 44 (D.Mass.1976): The court noted that it had long been accepted law that “the powers of a Bankruptcy Court do not extend to interference in the comprehensive regulatory laws of a state.” Id. at 45. In Beker Industries Corp. v. Florida Land and Water Adjudicatory Commission, 57 B.R. 611 (Bkrtcy S.D.N.Y.1986), the court held that administrative proceedings before the Commission were exempted by § 362(b)(4). The court stated, inter alia, that a debtor in possession under Chapter 11 is not excused because of its bankruptcy from valid and enforceable state and local regulations. In Re Porter, 42 B.R. 61 (Bkrtcy.1984), concerned state public nuisance proceedings against a house of prostitution. In applying the § 362(b)(4) exemption, the court pointed out that the debtor’s property was used in violation of state law, that a governmental unit had pursued legal action to remedy the violation, that the debtor was being deprived of property of the estate to ensure compliance with public policy, but that the debtor was not being deprived of title to the real estate or prevented from exercising dominion and control over it. Id. at 66. In Matter of Kennise Diversified Corp., 34 B.R. 237 (Bkrtcy.1983), the court applied the §" }, { "docid": "6822050", "title": "", "text": "Court feels it should make a short observation. Because bankruptcy court decisions are not in agreement as to the law, the Debtor may have been misled and has acted in a contradictory fashion. The Debtor by one attorney is opposing what the Debtor by another attorney is requesting. A resolution of several of the issues before this Court will help resolve these matters. These are: (1) Was the Application for Removal timely filed? (2) Does this Court have jurisdiction to grant relief from stay in this case? (3) Even if this Court has such jurisdiction, is this the proper venue to hear a Motion for Relief from Stay in this case? (4) Should this Court transfer the case to the United States Bankruptcy Court for the District of South Carolina? 1. Was the Application for Removal Timely Filed? The Bankruptcy Reform Act of 1978, Pub.L. 95-595, U.S.Code Cong. & Admin. News 1978, p. 5787, amended 28 U.S.C. by adding a new Chapter 90 relating to the jurisdiction of Bankruptcy Courts. 28 U.S.C. § 1478 deals with removal of actions to the Bankruptcy Courts: (a) A party may remove any claim or cause of action in a civil action, other than a proceeding before the United States Tax Court or a civil action by a government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action. (b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground and an order under this subsection remanding a claim or cause of action, or a decision not so remanding, is not reviewable by appeal or otherwise. Interim Bankruptcy Rule 7004 which has been adopted as a Local Rule in this jurisdiction dictates the process to be followed in bringing about such a removal. The note by the Advisory Committee on Bankruptcy Rules explaining Interim Rule 7004 states: Section 1478 of Title 28 authorizes the" }, { "docid": "13941101", "title": "", "text": "comprehensive regulatory laws of a state.” Id. at 45. In Beker Industries Corp. v. Florida Land and Water Adjudicatory Commission, 57 B.R. 611 (Bkrtcy S.D.N.Y.1986), the court held that administrative proceedings before the Commission were exempted by § 362(b)(4). The court stated, inter alia, that a debtor in possession under Chapter 11 is not excused because of its bankruptcy from valid and enforceable state and local regulations. In Re Porter, 42 B.R. 61 (Bkrtcy.1984), concerned state public nuisance proceedings against a house of prostitution. In applying the § 362(b)(4) exemption, the court pointed out that the debtor’s property was used in violation of state law, that a governmental unit had pursued legal action to remedy the violation, that the debtor was being deprived of property of the estate to ensure compliance with public policy, but that the debtor was not being deprived of title to the real estate or prevented from exercising dominion and control over it. Id. at 66. In Matter of Kennise Diversified Corp., 34 B.R. 237 (Bkrtcy.1983), the court applied the § 362(b)(5) exemption to allow the City to enforce its housing laws. In the course of its opinion, the court stated: “The provisions of the Bankruptcy Code do not and are not intended to provide an automatic mechanism for relieving property owners of the unpleasant effects of valid local laws embodying police and regulatory provisions.” Id. at 245. In Re Cousins Restaurants, Inc., 11 B.R. 521 (Bkrtcy.1981), involved the operation of a discotheque without a valid permit. In allowing the Town’s action to proceed under § 362(b)(4), the court noted that the debtor had the right to challenge the Town’s action in the state courts. But see In Re Island Club Marina, Ltd., 38 B.R. 847 (Bkrtcy.1984), where the court held that a zoning change requiring cancellation of debtor’s building permits was invalid, that equitable estoppel required a finding that debtor’s building permit was valid, and that because a building permit was not required for health and safety, the exemption provision of § 362(b)(4) did not apply. Finally, although not directly implicated, the provisions of 28" }, { "docid": "1277212", "title": "", "text": "appropriate for bankruptcy courts to avoid incursions into family law matters out of consideration of court economy, judicial restraint, and deference to our state court brethren and their established expertise in such matters.” In re: MacDonald, 755 F.2d 715, 719 (9th Cir.1985). Fifth, the debtor maintains that this court should not allow the action to proceed in the Family Court in South Carolina as it will interfere with the ability of this court to supervise the administration of the debt- or’s property. The South Carolina action will not interfere with the supervision of the administration of the debtor’s estate, but will fix the rights of Mrs. Bible as to any claim she may have against the bankruptcy estate. The filing of this Chapter 11 proceeding under 11 U.S.C. § 301 creates an estate comprised of all legal or equitable interests of the debtor in property as of the commencement of the case wherever located and by whomever held. 11 U.S.C. § 541(a). As debtor-in-possession, the debtor assumes all the rights, other than the right to compensation, and powers of a trustee as defined in the Bankruptcy Code. See, 11 U.S.C. § 1107. Under 11 U.S.C. § 544, the debtor-in-possession is clothed with the status of a hypothetical lien creditor and a hypothetical bona fide purchaser of real property from the debtor. At the time the debtor filed his Chapter 11 petition, the debtor could have freely conveyed any property he owned individually or had in his possession or control, free of Mrs. Bible’s interests even though the South Carolina action had been filed. Under these circumstances, a judgment lien creditor seeking to execute on the debtor’s property, or a bona fide purchaser of real property, would have taken title to that property free and clear of Mrs. Bible’s interest. See, Johnson v. Fisher (In re: Fisher), 67 B.R. 666 (Bankr.D.Colo.1986). Pursuant to 11 U.S.C. § 544, the rights of Mrs. Bible to specific marital property were terminated by the filing of the petition in bankruptcy. However, no bankruptcy code provision terminates Mrs. Bible’s right to be compensated from the debtor’s" }, { "docid": "23629619", "title": "", "text": "his creditor’s or guarantor’s claim, absent relief from the'automatic stay, principles of law, which might otherwise bind the debtor, are of no effect in a bankruptcy context. Accordingly, I conclude that the debtor would not be bound by any judgment Plessey might obtain against Gardner in state court, and consequently, Gardner is not protected by the automatic stay. Therefore those concerns are not a basis for denying Plessey’s motion to sever and remand. However, that conclusion is not dis-positive of the issués here, as 28 U.S.C. § 1478(b) requires an analysis of equitable considerations. It should first be observed that I am not persuaded by Plessey’s assertion that remand is supported by equitable grounds. On the contrary, severing and remanding Plessey’s claim against Gardner potentially exposes Gardner to inconsistent judgments. See 11 U.S.C. § 502(e)(1)(A). Furthermore,. this is not a proceeding where trial of the matter removed was imminent in the state court, In re Mansen, 20 B.R. 391, 9 B.C.D. 130, 131 (Bkrtcy.D.Mass. 1982), or where an unsettled question of state law is at issue, In re Wild Oats Utilities, Inc., 18 B.R. 959, 8 B.C.D. 1259 (Bkrtcy. S.D.N.Y.1982). Here the interests of equity and judicial economy dictate that the issues between the debtor, Plessey and Gardner be litigated in the same forum. III. Accordingly, it is ORDERED that Ples-sey’s motion be, and hereby is, denied. .28 U.S.C. § 1478, which governs removal to the bankruptcy court, provides (a) A party may remove any claim or cause of action in a civil action, other than a proceeding before the United States Tax Court or a civil action by a Government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action. (b) 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 under this subsection remanding a claim or cause of action, or a decision not so remanding," }, { "docid": "6822049", "title": "", "text": "attached thereto states that in addition to the law suit in the District Court for the Western District of Pennsylvania, there are some eighty-five products liability actions pending against the Debtor in over thirty jurisdictions. The Motion seeks to have this action, once removed from the District Court, transferred to the Bankruptcy Court for the District of South Carolina. The Motion is supported by an Order, signed by Judge Davis, the Bankruptcy Judge for the District of South Carolina, allowing the Debtor to transfer all the products liability cases to South Carolina. The Order, of course, does not order this Court to comply but rather approves this course of action for ease of administration and for economic reasons. DISCUSSION The Plaintiffs in this action raise a question as to whether the insurance policy is part of the Debtor’s estate. The Court does not have to reach the merits of this issue because we have determined that this Court is not the proper forum to hear this proceeding. Before, however, resolving the relevant procedural issues, this Court feels it should make a short observation. Because bankruptcy court decisions are not in agreement as to the law, the Debtor may have been misled and has acted in a contradictory fashion. The Debtor by one attorney is opposing what the Debtor by another attorney is requesting. A resolution of several of the issues before this Court will help resolve these matters. These are: (1) Was the Application for Removal timely filed? (2) Does this Court have jurisdiction to grant relief from stay in this case? (3) Even if this Court has such jurisdiction, is this the proper venue to hear a Motion for Relief from Stay in this case? (4) Should this Court transfer the case to the United States Bankruptcy Court for the District of South Carolina? 1. Was the Application for Removal Timely Filed? The Bankruptcy Reform Act of 1978, Pub.L. 95-595, U.S.Code Cong. & Admin. News 1978, p. 5787, amended 28 U.S.C. by adding a new Chapter 90 relating to the jurisdiction of Bankruptcy Courts. 28 U.S.C. § 1478 deals" }, { "docid": "7716809", "title": "", "text": "is determined to be “too adequate” the agreement should be modified or set aside. In this case there is no evidence to suggest that enforcement of the adequate protection agreement would be inequitable. FMCC has not asked that its claim be given 11 U.S.C. § 507(b) status and therefore its claim shall not be given that priority. Accordingly, IT IS HEREBY ORDERED that the request for administrative expenses of Ford Motor Credit Corporation in the amount of $10,325.47 is ALLOWED. A determination regarding FMCC’s entitlement to the disputed $2,872.71 is left to another day. . The U.S. Trustee has the responsibility of supervising administration of chapter 11 cases. 28 U.S.C. § 586(a)(3); Bankruptcy Rule X-1007. The pilot trustee program is available in the: (1) District of Maine, District of New Hampshire, District of Massachusetts, and District of Rhode Island. (2) Southern District of New York. (3) District of Delaware and District of New Jersey. (4) Eastern District of Virginia and District of Columbia. (5) Northern District of Alabama. (6) Northern District of Texas. (7) Northern District of Illinois. (8) District of Minnesota, District of North Dakota, District of South Dakota. (9) Central District of California. (10) District of Colorado and District of Kansas. (28 U.S.C. § 581). . The referee’s dual role of administrator and judge under the Bankruptcy Act of 1898 was the subject of much criticism. See Report of Commission on the Bankruptcy Laws of the United States, H.R.Doc. No. 93-137, 93d Cong., 1st Sess., Pt. I, p. 93. . In re Gusam Restaurant Corporation, 32 B.R. 832, 10 B.C.D. 1320 (Bkrtcy. ED NY 1983), and In re Nikron, Inc., 27 B.R. 773, 10 B.C.D. 335 (Bkrtcy. ED MI 1983). Bankruptcy Rule 2015 requires the debtor to file periodic reports and many districts use case administrators to monitor chapter 11 cases. In the Eastern District of North Carolina, there is no case administrator. . This district presently has 250 pending chapter 11 cases of which less than 5% have active creditors’ committees. . The debtor’s weapons include: the automatic stay (11 U.S.C. § 362(a)); the ability to operate" }, { "docid": "23289746", "title": "", "text": "be in writing); id. § 27-35-20 (requiring that ”[a]ny agreement for the use or occupation of real estate for more than one year” be in writing); Player v. Chandler, 299 S.C. 101, 382 S.E.2d 891, 894 (1989) (suggesting that, in an action brought by lessees against lessors regarding oral modifications of a written lease contract, S.C.Code Ann. §§ 32-3-10(4), 32-3-10(5), and 27-35-20 might all have applicability). We wish only to note that the concept that a contract that lasts only for a person’s life is not considered to be a contract that necessarily extends for any length of time is quite common in our law and that, therefore, it is not unreasonable to expect that, had South Carolina’s legislature intended to regulate timeshares that are keyed to the holder’s life, it would have made that intention explicit in the statute. .We feel compelled to note a grave error on the part of the trial court. The district court allowed into evidence the testimony of two “expert witnesses\" called by DH & S: David Martin, who, while serving as general counsel to the South Carolina Real Estate Commission, drafted the SCTSA; and Aleta Pillick, an attorney who, while in her former employ with the South Carolina Tax Commission, investigated the LTPs and concluded that they were not timeshares. By admitting this evidence, the district court treated the proper, interpretation of the relevant statutory provision, S.C.Code Ann. § 27-32-10(9), as a matter properly resolved by the jury. As we make clear in the text, this question is purely one of law and is properly resolved by the court; indeed,' the proper resolution of this question mandates judgment for appellees, leaving nothing for the jury to determine. Moreover, even were there a material question of fact relating to the duration of the LTPs, it would still be error for the district court to have allowed the testimony of the witnesses listed above into evidence. Expert testimony as to the proper interpretation of applicable domestic law is inadmissible. Adalman v. Baker, Watts & Co., 807 F.2d 359, 366-67 (4th Cir.1986). ”[I]t is the responsibility" }, { "docid": "6822078", "title": "", "text": "control the claims of cases related to that asset rather than to allow the first Plaintiff to obtain a judgment to satisfy its claims. The insurance policy appears to be the only resource available to satisfy these proven claims. In this regard Section 1471(e) of Title 28 states: (e) the bankruptcy court in which a case under title 11 is commenced shall have exclusive jurisdiction of all the property, wherever located, of the debtor, as of the commencement of such case. 4. Should this Court remove this proceeding to the Bankruptcy Court for the District of South Carolina? Removal is governed by Section 1478 of Title 28. That section states: (a) A party may remove any claim or cause of action in a civil action, other than a proceeding before the United States Tax Court or a civil action by a government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have such jurisdiction over such claim or cause of action. The mechanics of Section 1478(a) are such that removal may only be to the bankruptcy court for the district in which the civil action is pending. In this case the only removal allowed is to this Court. Collier states: However once removal is effected, the general change of venue provisions of 28 U.S.C. §§ 1475, 1477 would apply and that venue may be changed if the criteria of that section may be met. 1 Collier on Bankruptcy, 3-73, 74 (15th Ed. 1981). This strikes the Court as consistent with our analysis regarding jurisdiction and venue set forth above. The local bankruptcy court is the most convenient court to re ceive removal petitions and acts as the first court to review them. If it is also the “home” court, it will decide whether to hear the matter or remand it to the district court pursuant to Section 1478(b). If the local bankruptcy court is not the “home” court, it should transfer the case to the “home” court. In this case, this Court" } ]

[ { "docid": "22709956", "title": "", "text": "falling under the head of cases of gross negligence, for any neglect of duties imposed for the protection of life or property is culpable, and deserves punishment.” Missouri Pacific R. Co. v. Humes, 115 U. S. 512, 521 (1885). See also Minneapolis & St. Louis R. Co. v. Beckwith, 129 U. S. 26, 34 (1889) (“culpable negligence”). The large majority of state and lower federal courts were in agreement that punitive damages awards did not require a showing of actual malicious intent; they permitted punitive awards on variously stated standards of negligence, recklessness, or other culpable conduct short of actual malicious intent. The same rule applies today. The Restatement (Second) of Torts (1979), for example, states: “Punitive damages may be awarded for conduct that is outrageous, because of the de fendant’s evil motive or his reckless indifference to the rights of others.” § 908(2) (emphasis added); see also id., Comment b. Most cases under state common law, although varying in their precise terminology, have adopted more or less the same rule, recognizing that punitive damages in tort cases may be awarded not only for actual intent to injure or evil motive, but also for recklessness, serious indifference to or disregard for the rights of others, or even gross negligence. The remaining question is whether the policies and purposes of § 1983 itself require a departure from the rules of tort common law. As a general matter, we discern no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action. Smith offers us no persuasive reason to the contrary. Smith’s argument, which he offers in several forms, is that an actual-intent standard is preferable to a recklessness standard because it is less vague. He points out that punitive damages, by their very nature, are not awarded to compensate the injured party. See Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Electrical Workers v. Foust, 442 U. S. 42, 48 (1979); Gertz v. Robert Welch, Inc., 418 U. S. 323, 349-350" } ]

[ { "docid": "15123344", "title": "", "text": "an offer. The burden of humiliation occasioned by discrimination is heavy. When one has felt it as Pinch-back did here, we cannot require the victim to press on meaninglessly. To borrow from an illustration in Justice Stewart’s Teamsters opinion, if Armistead should announce its policy of discrimination by a “Whites Only” sign, its “victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.” 431 U.S. at 365, 97 S.Ct. at 1870. This is the crux of the futile gesture doctrine. The discrimination is no less because Armistead conveyed its message by subtle means. The victims who were reliably informed of Armistead’s policy would not be limited to those who approached Armistead and were rebuffed. Pinchback, who was unwilling to engage in the futile gesture of submitting an offer for the property, is nonetheless a victim of discrimination. See 431 U.S. at 366, 97 S.Ct. at 1870. IV Armistead complains that Pinchback failed to meet her initial prima facie burden under McDonnell Douglas and hence cannot prevail under §§ 1981 or 1982. Not surprisingly, Armistead identifies as the missing elements Pinchback’s failure to apply and the lack of an outright rejection from Armistead. It appears that Armistead is simply recasting its opposition to the futile gesture doctrine in terms of a prima facie showing. The McDonnell Douglas scheme is a recognition that direct proof of unlawful discrimination is often difficult to obtain. It permits a plaintiff to make an initial showing, indirect in nature, that raises a presumption of illegality. This scheme is routinely used in housing and employment discrimination cases alike. The district court concluded that Pinch-back produced sufficient direct evidence of discrimination to prove Armistead violated §§ 1981 and 1982. 689 F.Supp. at 549-50. Because she proved purposeful discrimination directly, largely through the testimony of former board members Ward and Co-nant, the McDonnell Douglas method of proof is irrelevant. All of this is explained in United States Postal Service Board v. Aikens, 460 U.S. 711, 713-14, 103 S.Ct. 1478, 1480-81, 75 L.Ed.2d 403 (1983), in which the Court said: “Because this" }, { "docid": "3866051", "title": "", "text": "the district court had no basis to assess $25,000 in punitive damages against Mr. Nuekel and CIB, jointly. Federal courts award punitive damages when a defendant has acted “with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so,” Coehetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978), or “with such conscious and deliberate disregard of the consequences of his actions to others that his conduct is wanton.” Knippen v. Ford Motor Co., 546 F.2d 993, 1002 (D.C.Cir.1976) (quoted in Fountila v. Carter, 571 F.2d 487, 491 (9th Cir. 1978). We hold an employer liable for punitive damages for the conduct of his agent when the record shows that he was, “by action or knowledgeable inaction, involved in the wrongdoing,” Marr v. Rife, 503 F.2d 735, 745 (6th Cir. 1974), or that he has “authorized, ratified, or fostered the acts complained of.” Williams v. City of New York, 508 F.2d 356, 361 (2d Cir. 1974). The district court correctly applied those standards in this case. App. at 130-31. Considering that Mr. Nuekel and CIB had previously entered into a consent decree agreeing to pursue a policy of non-discrimination, and that Mr. Nuekel blithely admitted, via deposition, that he had not taken any action either to implement or enforce a policy of non-discrimination, but rather his only interest was to make money and further considering that guesswork alone was used to fulfill requirements to report the number of minority tenants, this Court is satisfied that the district court’s assessment of $25,000 punitive damages against entities receiving between $300,000 and $400,000 per month in gross rentals was not an abuse of discretion. D. The defendants challenge a portion of the compensatory damage award, specifically, the $4451.00 awarded as the difference in rent and utility bills between the substitute apartment and apartment sixty-seven. It is suggested that this award was improper because the Millers received fair economic value in exchange for their rent and utility payments and therefore suffered no legal damage. Defendants further contend that if the plaintiffs did suffer legal" }, { "docid": "15123334", "title": "", "text": "trial she eventually settled with all of the defendants except Armistead. The Title VIII claim was dismissed because the statute of limitations had run. The district court conducted an eight day bench trial on the remaining claims. The court found that Armistead discriminated against blacks and injured Pinchback as a result. Pinchback was awarded $2,500, attorneys fees and costs. The court also ordered detailed injunctive relief designed to cure the racist policies it found at Armi-stead Gardens. The district court applied the “futile gesture” or “futile act” theory developed in Title VII employment discrimination law to Pinchback’s housing claims. The court found that Armistead had a discriminatory policy and would have rejected Pinchback had she actually applied for a ■ leasehold interest at Armistead Gardens.. The court also found that Pinchback would have applied but for the policy and was put off by a reasonably held belief that filling out and submitting an application was a waste of time. The court concluded that Armi-stead’s discrimination injured Pinchback despite the absence of actual application and rejection. 689 F.Supp. at 554. This conclusion turns' on a number of specific factual findings. Armistead was found to have a policy of discriminating against blacks, which we discuss more fully in section II below. The court found that when Pinchback responded to the ad she was a potential bona fide purchaser who was financially able to buy the property and sincerely interested in it. 689 F.Supp. at 549-50. Importantly, the court considered whether Pinchback’s reliance on Dailey’s description of the policy reasonably deterred her from applying. Although Dailey represented the leasehold seller and had no official connection to Ar-mistead, the court found that Pinchback “reasonably regarded” Dailey as a “reliable information source, thereby justifying Pinchback’s decision to forego applying to Armistead Gardens.” 689 F.Supp. at 554. The court also found Armistead to be the source, “directly or indirectly,” of Dailey’s information about the racist policy at Armistead Gardens. 689 F.Supp. at 554. II Armistead first contends that Pinch-back failed to prove Armistead discriminated against blacks. There was, in the words of the district court, “little" }, { "docid": "14493843", "title": "", "text": "in controversy consists entirely of punitive damages, the probability that the claim is merely colorable and beyond a reasonable expectation of recovery increases. Compare 1 Moore’s Federal Practice ¶ 0.93[3], at 890-94 (2d ed. 1948) with id. ¶0.93[4], at 897. Total reliance upon punitive damages therefore raises a serious question whether plaintiffs have pleaded the jurisdictional amount in good faith and I must exercise considerable circumspection in scrutinizing the complaint. See Zahn v. International Paper Co., 469 F.2d 1033, 1033-34 n.1 (2d Cir. 1972), aff’d, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); cf. Hanna v. Drobnick, supra, 514 F.2d at 398-99. The Court of Appeals for the Third Circuit has recently articulated the test applicable to an award of punitive damages. In Cochetti v. Desmond, supra, 572 F.2d at 105, the court restated the proposition that punitive damages may be awarded in civil rights cases. Although approving the utility of punitive damages as a deterrent, the court nevertheless limited the appropriate circumstances for such an award to those cases in which “the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief.” Id. at 106. The test requires that the defendant have acted with “actual knowledge that he was violating a federally-protected right or with reckless disregard of whether he was doing so.” Id. Plaintiffs’ allegation that “[defendants know or should know that the United States Constitution, the Child Nutrition Act, and the regulations . . .required them to provide applicants and recipients with written notice and fair hearings,” Complaint ¶ 48, is conclusory and falls short of the Third Circuit’s standard for recovering punitive damages. Similarly, plaintiffs’ assertion that defendants acted “deliberately, wilfully and maliciously,” id., is equally conclusory. It appears from the face of the complaint that none of the plaintiffs, with the exception of Andrea Carey, will recover the jurisdictional minimum. When a plaintiff’s allegation of damages is controverted either by the court or by the defendant, the burden shifts to the plaintiff to show that the likelihood of recovering less than the jurisdictional minimum is not legally" }, { "docid": "15123347", "title": "", "text": "against unreleased joint tortfeasors must be reduced by the settlement amount. If § 19 controls the settlement issue, the $4,000 paid pursuant to the consent decree ought to count toward the $2,500 judgment against Armistead. This would reduce what Armistead owes to zero. This might be true if the $2,500 had been awarded for Armistead’s violation of Maryland law. The district court specifically found otherwise, holding that “[tjhis reduction [for settlement awards established by § 19] has no effect here, since it is inapplicable to the damages awarded on the federal claims.” 689 F.Supp. at 555. The district court decided that the violations of §§ 1981 and 1982 were adequate by themselves to justify the $2,500 award. The effect of the release on Pinch-back’s federal claims against Armistead is a question of federal law. See Gamewell Mfg. Inc. v. HVAC Supply, Inc., 715 F.2d 112, 114 n. 4 (4th Cir.1983). We believe the earlier settlement agreement neither reduces the judgment amount nor releases Armistead from its obligation to pay. First, there is no federal equivalent to § 19 which suggests that the $2,500 should be reduced. Second, under federal law the settlement agreement only releases Armistead if Pinchback intended it to have that effect. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 343-48, 91 S.Ct. 795, 808-11, 28 L.Ed.2d 77 (1971); Avery v. United States, 829 F.2d 817, 819 (9th Cir.1987). The agreement clearly does not release Armistead and, in fact, contains an express reservation of all Pinchback’s rights against the corporation. Accordingly, Armistead owes her the full amount of the judgment. VI The district court also held that Armi-stead violated Md.Code Ann. Art. 49B, § 25. 689 F.Supp. at 554-55. This aspect of the case involves the issue whether Maryland fair housing law confers a private right of action on the victims of discrimination. Because the Maryland Court of Appeals has not yet had an occasion to decide this question, we decline to address it. The award of damages to Pinchback and the grant of equitable relief rest firmly on federal law, so a decision on" }, { "docid": "15123345", "title": "", "text": "§§ 1981 or 1982. Not surprisingly, Armistead identifies as the missing elements Pinchback’s failure to apply and the lack of an outright rejection from Armistead. It appears that Armistead is simply recasting its opposition to the futile gesture doctrine in terms of a prima facie showing. The McDonnell Douglas scheme is a recognition that direct proof of unlawful discrimination is often difficult to obtain. It permits a plaintiff to make an initial showing, indirect in nature, that raises a presumption of illegality. This scheme is routinely used in housing and employment discrimination cases alike. The district court concluded that Pinch-back produced sufficient direct evidence of discrimination to prove Armistead violated §§ 1981 and 1982. 689 F.Supp. at 549-50. Because she proved purposeful discrimination directly, largely through the testimony of former board members Ward and Co-nant, the McDonnell Douglas method of proof is irrelevant. All of this is explained in United States Postal Service Board v. Aikens, 460 U.S. 711, 713-14, 103 S.Ct. 1478, 1480-81, 75 L.Ed.2d 403 (1983), in which the Court said: “Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issues in these terms, they have unnecessarily evaded the ultimate question of discrimina tion vel non.” See also Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). V Armistead also assigns error to the award of $2,500 in compensatory damages. Before trial, Pinchback agreed to a consent decree with defendants Roy E. Jones Real Estate, Roy E. Jones and J.R. Diamond, and accepted $4,000 in exchange for a release of all her claims against those parties. The consent decree specifically reserved Pinchback’s rights regarding Armistead for “any present or future claims.” Armistead argues that Md.Code Ann. Art. 50 § 19 governs the $2,500 award. Under § 19, if a tortfeasor makes a settlement payment, subsequent awards" }, { "docid": "4540732", "title": "", "text": "her counsel have not attempted to resolve a stay violation before initiating litigation, Debtor and her counsel were well within their rights in bringing the instant action against the Service. Debtor and her attorney believed that she was entitled to significant compensatory damages, particularly for Debtor’s mental anguish, as well as punitive damages. The Service has not put before this court any evidence that it was willing to compensate Debtor for any of these injuries. Thus, the amount of the fee, $2,709.00, appearing in all respects to be reasonable, is appropriately awarded to Debtor in compensation for her attorney’s fees. Finally, as to punitive damages, a number of courts have adopted the standard set forth by the court in In re Wagner, 74 B.R. 898 (Bankr.E.D.Pa.1987), for determining when “appropriate circumstances” exist for an award of such damages under section 362(h): Punitive damages are awarded in response to particularly egregious conduct for both punitive and deterrent purposes. Such awards are reserved for cases in which the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief. To recover punitive damages, the defendant must have acted with actual knowledge that he was violating the federally protected right or with reckless disregard of whether he was doing so. Id. at 903 (quoting in part Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir.1978) (a cases decided under 42 U.S.C. § 1983)). The Second Circuit Court of Appeals noted that an award of punitive damages under section 362(h) requires “[a]n additional finding of maliciousness or bad faith on the part of the offending creditor ... ”, while another line of eases has concluded that punitive damages are appropriate “where an arrogant defiance of the federal law is demonstrated.” Under any of these standards, the circumstances of this case warrant the imposition of punitive damages against the IRS. As noted elsewhere in this order, the IRS maintains that it is incapable or unwilling to develop a system of cross-referencing its files to prevent actions such as the ones in this case from occurring. It offers no hope that" }, { "docid": "18755934", "title": "", "text": "before this court any evidence that it was willing to compensate Debtor for any of these injuries. Thus, the amount of the fee, $2,852.00, appearing in all respects to be reasonable, is appropriately awarded to Debtor in compensation for her attorney’s fees. Finally, as to punitive damages, a number of courts have adopted the standard set forth by the court in In re Wagner, 74 B.R. 898 (Bankr.E.D.Pa.1987), for determining when “appropriate circumstances” exist for an award of such damages under section 362(h): Punitive damages are awarded in response to particularly egregious conduct for both punitive and deterrent purposes. Such awards are reserved for cases in which the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief. To recover punitive damages, the defendant must have acted with actual knowledge that he was violating the federally protected right or with reckless disregard of whether he was doing so. Id. at 903 (quoting in part Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir.1978) (a case decided under 42 U.S.C. § 1983)). The Second Circuit Court of Appeals noted that an award of punitive damages under section 362(h) requires “[a]n additional finding of maliciousness or bad faith on the part of the offending creditor ... ”, while another line of cases has concluded that punitive damages are appropriate “where an arrogant defiance of the federal law is demonstrated.” Under any of these standards, the circumstances of this case warrant the imposition of punitive damages against the IRS. As noted elsewhere in this order, the IRS maintains that it is incapable or unwilling to develop a system of cross-referencing its files to prevent actions such as the ones in this case from occurring. It offers no hope that any system is contemplated or will be instituted in the future. It has been sued on numerous occasions in this District for actions essentially identical to those committed in this case. Doubtless, this is not the only judicial district in which it has so acted. It comes before the Court showing no remorse, apparently believing that it is" }, { "docid": "15123331", "title": "", "text": "BUTZNER, Senior Circuit Judge: In this appeal, we must consider whether the “futile gesture” theory applies to acts of housing discrimination. The district court concluded that it does and held Armi-stead Homes Corporation liable under 42 U.S.C. § 1981, § 1982, and Maryland law for denying Karen Pinchback housing opportunities because she is black. We find it unnecessary to determine liability under Maryland law, but in all other respects we affirm the judgment of the district court. See Pinchback v. Armistead Homes Corp., 689 F.Supp. 541 (D.Md.1988). I This case is before us because of Karen Pinchback’s efforts to secure suitable housing in Armistead Gardens, Baltimore, Maryland. Because the facts are discussed in great detail in the district court’s opinion, we include only a brief summary. Armistead exercised control over the composition of the Armistead Gardens community. Armistead Gardens is a cooperative arrangement made up of “members” who purchase 99 year leases from the corporation. The corporation retains a fee interest in the housing units and grants the members the right to renew their leases. When a member sells a unit, Armistead does little if anything to locate potential buyers. However, Armistead has the right of first refusal of any offer and can simply veto a sale. Armistead also has a membership committee, composed of residents, who screen prospective buyers by seeing them in person and making recommendations to Armistead’s board of directors. The board exercises broad supervisory powers and must give its approval before a prospective buyer can become a member of the Armi-stead Gardens community. See 689 F.Supp. at 544-45. At the time of trial, Armistead Gardens was over 30 years old and never had a black member, although a few black persons had applied. See 689 F.Supp. at 545. The district court concluded Armistead Gardens was “more than just a neighborhood; it is 'a cooperative housing development where the members ... determine who is, and who is not, permitted to become an Armistead leasehold owner.” 689 F.Supp. at 545. Responding to an advertisement in a Baltimore newspaper for a “starter home” costing only $12,000, Pinchback phoned a" }, { "docid": "18755933", "title": "", "text": "this event to be fleeting and inconsequential. Accordingly, Debtor is not entitled to any compensation for her emotional distress or mental pain and suffering. As to Debtor’s claim for attorney’s fees, Debtor’s counsel submitted a detailed fee application indicating that he had spent a total of 28.52 hours on this matter at the professional rate of $100.00 per hour, thus yielding a total fee of $2,852.00. The IRS asserts that Debtor is not entitled to attorney’s fees because she and her attorney did not seek to resolve the dispute in a non-litigious manner. I disagree. Although a number of courts have determined that an award of attorney’s fees is not warranted where a debtor and his or her counsel have not attempted to resolve a stay violation before initiating litigation, Debtor and her counsel were well within their rights in bringing the instant action against the Service. Debtor and her attorney believed that she was entitled to significant compensatory damages, particularly for Debtor’s mental anguish, as well as punitive damages. The Service has not put before this court any evidence that it was willing to compensate Debtor for any of these injuries. Thus, the amount of the fee, $2,852.00, appearing in all respects to be reasonable, is appropriately awarded to Debtor in compensation for her attorney’s fees. Finally, as to punitive damages, a number of courts have adopted the standard set forth by the court in In re Wagner, 74 B.R. 898 (Bankr.E.D.Pa.1987), for determining when “appropriate circumstances” exist for an award of such damages under section 362(h): Punitive damages are awarded in response to particularly egregious conduct for both punitive and deterrent purposes. Such awards are reserved for cases in which the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief. To recover punitive damages, the defendant must have acted with actual knowledge that he was violating the federally protected right or with reckless disregard of whether he was doing so. Id. at 903 (quoting in part Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir.1978) (a case decided under 42 U.S.C." }, { "docid": "567282", "title": "", "text": "of the trial court. Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). A trial court cannot be required to award punitive damages. A determination to award punitive damages, however, must have support in the record. In Busche, this court refused to overturn an award of punitive damages because the award was not clearly erroneous. We find that the magistrate’s award of punitive damages is not clearly erroneous. The magistrate found defendant De Los Santos’ action was a willful violation because he was aware of Regulation 804 and its requirements. The magistrate found that the defendant willfully and knowingly violated plaintiff’s right to an impartial tribunal. We note that this case involves a clear violation of the Administrative Regulation and of plaintiff’s constitutional rights. Defendant’s attempts to argue otherwise are disingenuous at best. In addition, the award has a readily apparent deterrent effect on this type of willful violation of a plaintiff’s due process right. We will not disturb the magistrate’s award of $100 in punitive damages. V For the foregoing reasons, we affirm the magistrate’s entry of judgment against the defendant-appellant and the award of both nominal and punitive damages. . This finding of fact was an amendment to the district court’s original findings added upon defendant’s request. . The relevant portion of Administrative Regulation 804 reads as follows: . Other courts have concluded that punitive damages are appropriate when the defendant has acted with “actual knowledge that he was violating a federally protected right or with reckless disregard at whether he was doing so,” Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir.1978); or when a defendant was “by action or knowledgeable inaction, involved in the wrongdoing.” Marr v. Rife, 503 F.2d 735, 745 (6th Cir.1974). Defendant in the instant case falls within these two categories of persons who may have punitive damages awarded against them." }, { "docid": "15123332", "title": "", "text": "When a member sells a unit, Armistead does little if anything to locate potential buyers. However, Armistead has the right of first refusal of any offer and can simply veto a sale. Armistead also has a membership committee, composed of residents, who screen prospective buyers by seeing them in person and making recommendations to Armistead’s board of directors. The board exercises broad supervisory powers and must give its approval before a prospective buyer can become a member of the Armi-stead Gardens community. See 689 F.Supp. at 544-45. At the time of trial, Armistead Gardens was over 30 years old and never had a black member, although a few black persons had applied. See 689 F.Supp. at 545. The district court concluded Armistead Gardens was “more than just a neighborhood; it is 'a cooperative housing development where the members ... determine who is, and who is not, permitted to become an Armistead leasehold owner.” 689 F.Supp. at 545. Responding to an advertisement in a Baltimore newspaper for a “starter home” costing only $12,000, Pinchback phoned a real estate agent, Diane Dailey, who was employed by Roy E. Jones Real Estate, the firm retained by the seller of the home to find a buyer. Dailey arranged to show Pinchback the home. Pinchback missed the scheduled meeting but called Dailey again to set up another time. When Pinch-back called, Dailey asked her whether she was black, and when Pinchback told her that she was, Dailey informed her that the community in which the home was located did not permit blacks to live there. That community was Armistead Gardens. Pinchback took Dailey at her word and assumed that the description of Armi-stead’s policy was accurate. Dailey showed Pinchback some homes in other neighborhoods, but none interested her. Pinchback reported the incident to an investigator with the Department of Housing and Urban Development. She then initiated this lawsuit against Armistead, Dai-ley, Jones Real Estate, and several of its officials, charging violations of her rights under §§ 1981 and 1982, Title VIII, 42 U.S.C. §§ 3601-31, and Maryland’s fair housing law. As the case moved towards" }, { "docid": "15123333", "title": "", "text": "real estate agent, Diane Dailey, who was employed by Roy E. Jones Real Estate, the firm retained by the seller of the home to find a buyer. Dailey arranged to show Pinchback the home. Pinchback missed the scheduled meeting but called Dailey again to set up another time. When Pinch-back called, Dailey asked her whether she was black, and when Pinchback told her that she was, Dailey informed her that the community in which the home was located did not permit blacks to live there. That community was Armistead Gardens. Pinchback took Dailey at her word and assumed that the description of Armi-stead’s policy was accurate. Dailey showed Pinchback some homes in other neighborhoods, but none interested her. Pinchback reported the incident to an investigator with the Department of Housing and Urban Development. She then initiated this lawsuit against Armistead, Dai-ley, Jones Real Estate, and several of its officials, charging violations of her rights under §§ 1981 and 1982, Title VIII, 42 U.S.C. §§ 3601-31, and Maryland’s fair housing law. As the case moved towards trial she eventually settled with all of the defendants except Armistead. The Title VIII claim was dismissed because the statute of limitations had run. The district court conducted an eight day bench trial on the remaining claims. The court found that Armistead discriminated against blacks and injured Pinchback as a result. Pinchback was awarded $2,500, attorneys fees and costs. The court also ordered detailed injunctive relief designed to cure the racist policies it found at Armi-stead Gardens. The district court applied the “futile gesture” or “futile act” theory developed in Title VII employment discrimination law to Pinchback’s housing claims. The court found that Armistead had a discriminatory policy and would have rejected Pinchback had she actually applied for a ■ leasehold interest at Armistead Gardens.. The court also found that Pinchback would have applied but for the policy and was put off by a reasonably held belief that filling out and submitting an application was a waste of time. The court concluded that Armi-stead’s discrimination injured Pinchback despite the absence of actual application and rejection." }, { "docid": "15123348", "title": "", "text": "to § 19 which suggests that the $2,500 should be reduced. Second, under federal law the settlement agreement only releases Armistead if Pinchback intended it to have that effect. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 343-48, 91 S.Ct. 795, 808-11, 28 L.Ed.2d 77 (1971); Avery v. United States, 829 F.2d 817, 819 (9th Cir.1987). The agreement clearly does not release Armistead and, in fact, contains an express reservation of all Pinchback’s rights against the corporation. Accordingly, Armistead owes her the full amount of the judgment. VI The district court also held that Armi-stead violated Md.Code Ann. Art. 49B, § 25. 689 F.Supp. at 554-55. This aspect of the case involves the issue whether Maryland fair housing law confers a private right of action on the victims of discrimination. Because the Maryland Court of Appeals has not yet had an occasion to decide this question, we decline to address it. The award of damages to Pinchback and the grant of equitable relief rest firmly on federal law, so a decision on her state law claim is unnecessary at this stage of the litigation. Accordingly, with the exception of the court’s ruling on the state law claim, the judgment is affirmed. The judgment finding liability under state law is vacated. Pinchback shall recover her costs. AFFIRMED IN PART; VACATED IN PART." }, { "docid": "6258060", "title": "", "text": "willful if the creditor deliberately carried out the prohibited act with knowledge of the debtor’s bankruptcy case. Matthews v. United States (In re Matthews), 184 B.R. 594, 599 (Bankr.S.D.Ala.1995); In re Timbs, 178 B.R. 989, 997 (Bankr.E.D.Tenn. 1994); Hudson v. United States (In re Hudson), 168 B.R. 449, 453 (Bankr.S.D.Ga.1994); Temlock v. Falls Bldg., Ltd. (In re Falls Bldg., Ltd.), 94 B.R. 471, 481-82 (Bankr.E.D.Tenn.1988). Culpable parties can be sanctioned for willful violations of the automatic stay under 11 U.S.C.A. § 362(h) (West 1993), which provides as follows: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. Under this section, a Chapter 7 trustee can recover actual damages sustained by the bankruptcy estate resulting from willful violations of the stay. Martino v. First Nat’l Bank (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D.Ill.1995). The trustee’s attorney fees attributable to the § 362 issue constitute one form of such damages. Id. In addition, punitive damages are appropriate where there has been an arrogant defiance of federal law on the part of the culpable party. Timbs, 178 B.R. at 999. This court has previously noted that: “[P]unitive damages are awarded in response to particularly egregious conduct for both punitive and deterrent purposes. Such awards are ‘reserved ... for cases in which the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief.’ To recover punitive damages, the defendant must have acted with actual knowledge that he was violating the federally protected right or with reckless disregard of whether he was doing so.” Temlock, 94 B.R. at 482 (quoting In re Wagner, 74 B.R. 898, 903-04 (Bankr.E.D.Pa.1987) (quoting Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir.1978))). The determination of whether a willful violation of the stay constitutes such defiance is left to the discretion of the bankruptcy court. Timbs, 178 B.R. at 997. The evidence before the court clearly establishes that the Defendant had knowledge of the Debtors’ bankruptcy case on" }, { "docid": "15123335", "title": "", "text": "689 F.Supp. at 554. This conclusion turns' on a number of specific factual findings. Armistead was found to have a policy of discriminating against blacks, which we discuss more fully in section II below. The court found that when Pinchback responded to the ad she was a potential bona fide purchaser who was financially able to buy the property and sincerely interested in it. 689 F.Supp. at 549-50. Importantly, the court considered whether Pinchback’s reliance on Dailey’s description of the policy reasonably deterred her from applying. Although Dailey represented the leasehold seller and had no official connection to Ar-mistead, the court found that Pinchback “reasonably regarded” Dailey as a “reliable information source, thereby justifying Pinchback’s decision to forego applying to Armistead Gardens.” 689 F.Supp. at 554. The court also found Armistead to be the source, “directly or indirectly,” of Dailey’s information about the racist policy at Armistead Gardens. 689 F.Supp. at 554. II Armistead first contends that Pinch-back failed to prove Armistead discriminated against blacks. There was, in the words of the district court, “little evidence establishing that Armistead actually refused to approve the leasehold application of a black person.” 689 F.Supp. at 545. Armistead suggests that evidence of this sort is necessary to prove that blacks receive discriminatory treatment, as it is hard otherwise to tell if blacks are considered by different criteria than white applicants. Armistead also argues that what other evidence there was of racism at Armistead proved only prejudice on the part of individual residents and officials, not a community policy of discrimination. The record belies this argument. Two former members of Armistead’s governing board, Diana Lynn Ward and Margie Co-nant, gave a detailed account of the board’s hostility towards blacks. Their testimony reveals a singular anxiety on the part of the board over the prospect of blacks coming into the community. Ward and Conant each spoke of instances in which the board considered strategies at its regular meetings to keep blacks out. The discussions were usually deleted from the recordings made by Armistead of the meetings. The attitudes expressed went beyond mere personal prejudice, depicting" }, { "docid": "15123346", "title": "", "text": "case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issues in these terms, they have unnecessarily evaded the ultimate question of discrimina tion vel non.” See also Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). V Armistead also assigns error to the award of $2,500 in compensatory damages. Before trial, Pinchback agreed to a consent decree with defendants Roy E. Jones Real Estate, Roy E. Jones and J.R. Diamond, and accepted $4,000 in exchange for a release of all her claims against those parties. The consent decree specifically reserved Pinchback’s rights regarding Armistead for “any present or future claims.” Armistead argues that Md.Code Ann. Art. 50 § 19 governs the $2,500 award. Under § 19, if a tortfeasor makes a settlement payment, subsequent awards against unreleased joint tortfeasors must be reduced by the settlement amount. If § 19 controls the settlement issue, the $4,000 paid pursuant to the consent decree ought to count toward the $2,500 judgment against Armistead. This would reduce what Armistead owes to zero. This might be true if the $2,500 had been awarded for Armistead’s violation of Maryland law. The district court specifically found otherwise, holding that “[tjhis reduction [for settlement awards established by § 19] has no effect here, since it is inapplicable to the damages awarded on the federal claims.” 689 F.Supp. at 555. The district court decided that the violations of §§ 1981 and 1982 were adequate by themselves to justify the $2,500 award. The effect of the release on Pinch-back’s federal claims against Armistead is a question of federal law. See Gamewell Mfg. Inc. v. HVAC Supply, Inc., 715 F.2d 112, 114 n. 4 (4th Cir.1983). We believe the earlier settlement agreement neither reduces the judgment amount nor releases Armistead from its obligation to pay. First, there is no federal equivalent" }, { "docid": "13912936", "title": "", "text": "Accordingly, we hold that both violations of the automatic stay were willful, and Debtor is entitled to recover compensatory damages from IRS. This award is limited to attorney’s fees and costs, because Debt- or failed to introduce evidence as to other harm suffered. The parties are to work cooperatively to agree on the amount of Debtor’s reasonable attorney’s fees and costs in this matter. If they are unable to agree, Debtor may move to have us determine the issue. We turn finally to the question of whether IRS acted with “maliciousness or bad faith” so as to warrant punitive damages. “{P}unitive damages are awarded in response to particularly egregious conduct for both punitive and deterrent purposes.” Wagner v. Ivory (In re Wagner), 74 B.R. 898, 903 (Bkrtcy.E.D.Pa.1987), citing Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir.1978). “To recover punitive damages, the defendant must have acted with actual knowledge that he was violating the federally protected right or with reckless disregard of whether he was doing so,” Id., at 904. We are unable to conclude from the facts before us that the conduct of IRS was malicious or in bad faith. Accordingly, Debtor’s motion for punitive damages is denied. In summary, we find that: (1) IRS twice violated the automatic stay; (2) both violations were willful; (3) neither violation was malicious or in bad faith; and (4) Debtor is entitled to recover only reasonable costs and attorney’s fees. We hold that an award of damages may be assessed against IRS for its willful violations of the automatic stay, because sovereign immunity is waived under each of subsections (a), (b), and (c) of § 106. Debtor’s reasonable attorney’s fees and costs shall first be offset against the amount of his liability to IRS, as required by § 106(b). In the event an offset against the amount of the IRS claim as allowed does not satisfy the award, IRS shall forthwith pay the balance due Debtor. Counsel for Debtor is to settle an order consistent with this Memorandum of Decision. Sitting by Special Designation. . Our subject matter jurisdiction over this matter" }, { "docid": "18826473", "title": "", "text": "presenting one of these exceptions might require a trial concerning questions of fact. However, defendant Mitchell’s defense in this case, although both legal and factual, does not involve a factual dispute. As heretofore noted, defendant Mitchell has maintained throughout this litigation that he approved the warrantless wiretap pursuant to a national security investigation. Whether plaintiff is entitled to punitive damages and the amount of any such damages is a matter of federal common law. Basista v. Weir, 340 F.2d 74, 87 (3d Cir.1965). Federal common law permits recovery of punitive or exemplary damages where the plaintiff has shown a violation of his civil rights (Id. at 87) even if he does not receive an award of compensatory damages (Cochetti v. Desmond, 572 F.2d 102, 105 (3d Cir.1978); Fisher v. Volz, 496 F.2d 333, 347-48 (3d Cir.1974), provided that plaintiff can demonstrate that the defendant “acted with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so.... ” Cochetti v. Desmond, supra, 572 F.2d at 106. See also Scott v. Plante, 641 F.2d 117, 135 (3d Cir.1981); Fisher v. Volz, supra, 496 F.2d at 347. The Court will therefore set a hearing to determine whether the plaintiff is entitled to punitive damages and/or compensatory damages. As heretofore noted, this ease was remanded to this Court by the Third Circuit to determine whether Attorney General Mitchell is entitled to the absolute immunity of a prosecutor or a. qualified immunity. (599 F.2d at 1217). The Third Circuit did not disturb this Court’s earlier ruling that there existed genuine issues of material fact which precluded the granting of either motion for summary judgment concerning defendant FBI agents Albert Cooper and David Porter, who conducted the wiretap at issue in this case. (Memorandum of February 14, 1978, 447 F.Supp. 192). Since remand, the parties have not presented any additional facts either by affidavits, answers to interrogatories, or depositions, nor have they presented' any reason for the Court to reconsider its earlier ruling concerning the FBI agents. In particular, the parties have not discussed the applicability" }, { "docid": "15123343", "title": "", "text": "satisfied to establish a violation of fair housing law by reliance on the futile gesture theory: the plaintiff must be a member of a racial minority who was a potential bona fide buyer of the property and financially able to purchase it at the time it was offered for sale; the owner discriminated against people of the plaintiff's race; the plaintiff was reliably informed of this policy of discrimination and would have taken steps to buy the property but for the discrimination; and the owner would have discriminated against the plaintiff had the plaintiff disclosed an interest in the property. 659 F.Supp. at 545-54. The district court found that Pinchback satisfied these elements of a fair housing claim based on the futile gesture theory. Its findings are amply supported by the record. Pinchback was not required to do more than she did. She had no need to examine the property after Dailey told her no blacks could live there for precisely the same reasons why s.he had no need to exercise the futility of submitting an offer. The burden of humiliation occasioned by discrimination is heavy. When one has felt it as Pinch-back did here, we cannot require the victim to press on meaninglessly. To borrow from an illustration in Justice Stewart’s Teamsters opinion, if Armistead should announce its policy of discrimination by a “Whites Only” sign, its “victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.” 431 U.S. at 365, 97 S.Ct. at 1870. This is the crux of the futile gesture doctrine. The discrimination is no less because Armistead conveyed its message by subtle means. The victims who were reliably informed of Armistead’s policy would not be limited to those who approached Armistead and were rebuffed. Pinchback, who was unwilling to engage in the futile gesture of submitting an offer for the property, is nonetheless a victim of discrimination. See 431 U.S. at 366, 97 S.Ct. at 1870. IV Armistead complains that Pinchback failed to meet her initial prima facie burden under McDonnell Douglas and hence cannot prevail under" } ]

[ { "docid": "4439654", "title": "", "text": "discrimination in their selection of issues.” Report and Order, 84 FCC2d at 978, JA 41. Moreover, the Commission explicitly concluded that specialization would not bring about such unfortunate consequences: “There is little reason to believe, however, that under deregulation all programming reflecting issues of particular concern to, for instance, minority groups, would disappear from stations directing programming to, for instance, majority audiences.” Id. at 1072, JA 135. We find that the Commission’s shift in policy is adequately explained and sufficiently supported by economic analysis and logical argument. While petitioners may disagree with both the Commission’s predictions of licensee behavior and their factual predicates, this court must defer to the Commission’s analysis since “a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency.” FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 19, 81 S.Ct. 435, 445, 5 L.Ed.2d 377 (1961). Petitioners have therefore offered no reason to overturn the Commission’s decision that specialization in some situations will best serve the public interest. B. Ascertainment Procedures Petitioner NAACP challenges the Commission’s decision to eliminate all formal ascertainment procedures on several grounds: (1) that the Commission failed to explain adequately its departure from prior practices; (2) that the Commission failed to provide adequate evidentiary findings as support for its decision; and (3) that without these ascertainment procedures the Commission will inevitably involve itself in intensive content scrutiny, thereby raising First Amendment problems. See generally NAACP brief at 42-49. None of these arguments support reversal of the Commission’s decision. Formal ascertainment requirements were the end-product of many years of policy experimentation by the Commission. The basic principle underlying ascertainment is clear: For a radio licensee to provide programming responsive to issues facing the community, it must first ascertain just what those issues are. The Commission issued its first policy statement on the subject in 1960 and simply required the broadcaster to provide a statement describing the measures taken and efforts made “to dis cover and fulfill the tastes, needs, and desires of his community or service area.” See Report and" } ]

[ { "docid": "15394821", "title": "", "text": "the renewal procedure. In this regard, petitioners point to FCC actions which petitioners claim have severely limited the information licensees must provide to the public. In order to determine the validity of this claim, we examine separately the public file requirements of television and radio licensees. Television licensees must place a substantial amount of information in their public file. For example, a licensee must include documentation concerning ascertainment of community problems as well as an annual list of no more than ten significant problems or needs of the community served, along with examples of programs which meet these problems or needs. 47 C.F.R. § 73.3526(a)(9) (1982). In addition, television licensees must maintain program logs for the composite week and keep on file current “promises” concerning presentation of nonentertainment programming; if a licensee changes its general plans for such programming, it must then file an update noting the changes and the new programming promises. Id. § 73.-3526(a)(8). Finally, television licensees must also maintain raw program logs (a written record of everything a licensee broadcasts), id. § 73.3526(a)(10), and make these logs available for public inspection in accordance with certain procedures, 47 C.F.R. § 73.1850 (1982). This information is sufficient to permit the public to review a station’s programming performance. In contrast, radio licensees need file only an annual issues/programs list and an explanation of the methodology used to compile the list. Petitioners argue that this list is too insubstantial to permit meaningful review by the public of a station’s programming and urge the inclusion of program logs. In a companion case dealing with the FCC’s general deregulation of radio, we remanded the Commission’s decision to do away with the logging requirement. Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983) (United Church III). On remand, the Commission will decide what logging requirement, if any, is appropriate in the deregulated environment. Given the Commission’s wide latitude in the practical implementation of Congress’ will, we do not find that the renewal procedure mechanism adds any new factors to the calculus already required by United Church III. The" }, { "docid": "4439614", "title": "", "text": "problems of their communities; (2) the ascertainment procedures by which the licensees must identify those community needs and problems; (3) the guidelines that serve to limit the amount of radio broadcast time devoted to commercials; and (4) the requirement that radio stations maintain and make available program logs that record information about each program or commercial aired during the broadcast day. After setting forth a number of alternative options in each area of regulation, the Notice concluded by indicating the Commission’s initial preferences and by soliciting both comments and empirical information from interested parties. See Notice, 73 FCC2d at 525-528, JA 263-266. Public response was swift and vociferous; the Commission received over 20,000 comments and over 2,000 reply comments. The majority of the comments predominantly opposed deregulation. Report and Order, Deregulation of Radio, 84 FCC2d 968, 972 (1981) (Report and Order) (JA 31, 35). The American Civil Liberties Union and other public interest groups filed a motion for rescission of the Notice and for other procedural relief, protesting the limited comment period, the unclear scope of the Notice, and the lack of adequate evidentiary support. The Commission largely denied the request, but did release additional data and explanatory materials. On January 14, 1981 the Commission adopted its Report and Order, taking the following actions in the four areas of regulation: (1) eliminating quantitative guidelines for nonentertainment programming and retaining a modified and more limited obligation to provide such programming; (2) eliminating formal ascertainment procedures; (3) eliminating quantitative guidelines for commercial time; and (4) eliminating program logs requirements. The Report and Order provided extensive discussion of each decision, including, in the Appendices, separate explanations of the history of Commission policy and the major issues raised by the filed comments for each subject area. Subsequently, the Commission received numerous petitions for reconsideration, all of which were denied. However, the Commission did adopt another order on July 30, 1981 which discussed the issues raised by the petitions and attempted to clarify selected aspects of the original decision. See Memorandum Opinion and Order, 87 FCC2d 797 (1981) (Reconsideration Order) (JA 1). Prior to the" }, { "docid": "18780422", "title": "", "text": "Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT. J. SKELLY WRIGHT, Circuit Judge: Petitioner challenges an order of the Federal Communications Commission (FCC) revising its regulations governing the contents of the public files of commercial radio broadcasters. The new rule requires broadcast licensees to maintain a list of at least five to ten community issues addressed by the station’s programming during each three-month period. This new rule was enacted pursuant to our remand in Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983) (UCC III). Our remand was predicated on the FCC’s failure to explain adequately its replacement of its logging requirements with an illustrative issues/programs list. We were concerned that the FCC’s new rule left the public with insufficient information to evaluate the programming of broadcast licensees. Id. at 1442. Unfortunately, the FCC’s latest effort provides only cosmetic improvements on its previous design. As in UCC III, we find that a merely illustrative issues/program list does not further the Commission’s stated regulatory goal of relying on effective public participation in the license renewal process. Id. at 1441. Moreover, the Commission has failed to provide an adequate explanation for its rejection of an alternative proposal, duly submitted during the notice and comment proceedings, that would advance its stated goal. We therefore vacate the Commission’s order as arbitrary and capricious and remand the case for further proceedings. Background In 1981 the FCC initiated a sweeping deregulation of the radio industry. Specifically, it (1) deleted guidelines encouraging radio licensees to present a certain quantity of nonentertainment programming responsive to community needs, (2) abolished the ascertainment procedures by which the licensees identified community needs, (3) eliminated guidelines that limited the amount of broadcast time devoted to commercials, and (4) repealed the requirement that radio stations maintain program logs that recorded information about each program or commercial aired during the broadcast day. See Report and Order, Deregulation of Radio, 84 FCC2d 968 (1981) {First Report). At about the same time the FCC moved to simplify its license renewal process, replacing its previous long application forms with" }, { "docid": "4439619", "title": "", "text": "obligation to provide nonentertainment programming. Until this proceeding, broadcasters followed the Commission’s landmark Report and Statement of Policy Res: Commission en banc Programming Inquiry, 44 FCC 2303 (1960) (Programming Statement). This statement of programming policy stressed the need for “well-rounded community service” and went on to describe Commission expectations of each station’s program service. The major elements usually necessary to meet the public interest, needs and desires of the community in which the station is located as developed by the industry, and recognized by the Commission, have included: (1) opportunity for local self-expression, (2) the development and use of local talent, (3) programs for children, (4) religious programs, (5) educational programs, (6) public affairs programs, (7) editorialization by licensees, (8) political broadcasts, (9) agricultural programs, (10) news programsf,] (11) weather and market reports, (12) sports programs, (13) service to minority groups, (14) entertainment programs.[ ] In its Report and Order the Commission now defined the public interest to require only that radio licensees provide programming responsive to community issues. See Reconsideration Order, 87 FCC2d at 804, JA 8. Broadcasters need not then, as a Commission requirement, provide any specific types of programming such as those listed above. Furthermore, in selecting which community issues to cover, licensees “may take into account their listenership and its interests, and the services provided by other radio stations in the community to groups other than its own listenership.” Report and Order, 84 FCC2d at 978, JA 41. In other words, the Commission will no longer require licensees to be responsive to issues facing the entire community or facing every significant group in the community; instead, the broadcasters may focus on the needs of their own audiences if they can show that other stations are providing adequate service for the other groups. Second, the Commission eliminated its formal ascertainment procedures. Over the years, the Commission had developed detailed procedures for licensees to follow in order to determine the needs and interests of the communities served and so to provide responsive programming. The requirements included compiling demographic data, conducting public opinion polls, interviewing community leaders, and developing" }, { "docid": "15394807", "title": "", "text": "unnecessary ad ministrative and paperwork burden on both licensees and the Commission. The Notice therefore proposed a new application system that would consist of five different review components. First, all licensees applying for renewal would submit a postcard-sized simplified renewal application containing answers to five questions. The second component is a long form audit — essentially the old renewal form— which would be sent to at least 5% of all television and non-commercial radio stations. (The FCC represents that, in fact, it has been selecting 10% of the eligible licensees for the long-form audit since the new procedures went into effect. Brief for FCC at 9 n. 3.) Third, the FCC would continue to require licensees to make publicly available information as to how the licensees ascertained the problems and needs of their communities and the manner in which the licensee’s programming addressed these problems and needs. Television stations would also have to include programming logs and programming “promises” in their public files. The FCC stated its belief that this public file would make sufficient information available to permit the public to test any concerns regarding a licensee’s fulfillment of the public service requirement — an important consideration given the Commission’s reliance on public participation to bring violations to the Commission’s attention. Fourth, the FCC’s Field Operations Bureau would conduct random audits of licensees to inspect technical operations and to insure that all required information was being made available to the public. Fifth, the Broadcast Bureau would conduct on-site inspections into charges of licensee misconduct. The Bureau would also have the power to conduct audits of licensees who submit problem applications. Other licensees might be audited on a random basis. On May 11, 1981, after receiving numerous comments from various broadcast groups and “public interest” media groups, the FCC issued its report and order substantially adopting the proposals as put forward in the Notice. Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad.Reg.2d (P & F) 740 (1981) (“Decision ”). In promulgating the new system, the FCC stressed" }, { "docid": "4439620", "title": "", "text": "804, JA 8. Broadcasters need not then, as a Commission requirement, provide any specific types of programming such as those listed above. Furthermore, in selecting which community issues to cover, licensees “may take into account their listenership and its interests, and the services provided by other radio stations in the community to groups other than its own listenership.” Report and Order, 84 FCC2d at 978, JA 41. In other words, the Commission will no longer require licensees to be responsive to issues facing the entire community or facing every significant group in the community; instead, the broadcasters may focus on the needs of their own audiences if they can show that other stations are providing adequate service for the other groups. Second, the Commission eliminated its formal ascertainment procedures. Over the years, the Commission had developed detailed procedures for licensees to follow in order to determine the needs and interests of the communities served and so to provide responsive programming. The requirements included compiling demographic data, conducting public opinion polls, interviewing community leaders, and developing lists of problems and issues facing the community. See Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC2d 650 (1971) (Ascertainment Primer). In its decision the Commission eliminated all procedural ascertainment requirements, imposing on licensees only the generalized obligation to determine the major issues in the communities of license that would warrant responsive programming. The broadcasters may use “any reasonable means” to ascertain the needs and problems of the community. See Report and Order, 84 FCC2d at 993, JA 56. Third, the Commission eliminated its commercialization processing guidelines. Like the nonentertainment programming guidelines, these served only to flag applications that warranted full Commission review. If a licensee proposed more advertising time than suggested by the appropriate guideline — generally 18 minutes of commercials per hour — then the application could not be processed routinely by the Broadcast Bureau. The Commission decided to eliminate all rules and policies relating to its concern of over-commercialization. Instead, the Commission intends to rely on marketplace forces entirely to determine commercialization levels and to deter advertising abuse. Id." }, { "docid": "4439613", "title": "", "text": "its decision, this time giving adequate attention to the usefulness of programming logs in the newly-revised, overall scheme of broadcast regulation. I. Background A. Procedural History On September 6, 1979 the Commission instituted rule-making proceedings to consider far-ranging proposals for rule and policy changes that would effect a substantial deregulation of commercial broadcast radio. In its Notice of Inquiry and Proposed Rulemaking, Deregulation of Radio, 733 FCC2d 457 (1979) (Notice) (Joint Appendix (JA) 195), the Commission identified as its goal the “potential reduction or elimination of regulations no longer appropriate to certain marketplace conditions and whose elimination would be consistent with the Commission’s public interest obligations.” Id. at 458, JA 196. The Notice provided a detailed economic analysis of the current conditions in the radio industry, concluding that increased competition and diversity among radio stations necessitated a reevaluation of the Commission’s entire regulatory approach. The Commission identified four areas in which significant deregulatory steps might be appropriate: (1) the guidelines encouraging radio licensees to present certain amounts of nonentertainment programming to meet the needs and problems of their communities; (2) the ascertainment procedures by which the licensees must identify those community needs and problems; (3) the guidelines that serve to limit the amount of radio broadcast time devoted to commercials; and (4) the requirement that radio stations maintain and make available program logs that record information about each program or commercial aired during the broadcast day. After setting forth a number of alternative options in each area of regulation, the Notice concluded by indicating the Commission’s initial preferences and by soliciting both comments and empirical information from interested parties. See Notice, 73 FCC2d at 525-528, JA 263-266. Public response was swift and vociferous; the Commission received over 20,000 comments and over 2,000 reply comments. The majority of the comments predominantly opposed deregulation. Report and Order, Deregulation of Radio, 84 FCC2d 968, 972 (1981) (Report and Order) (JA 31, 35). The American Civil Liberties Union and other public interest groups filed a motion for rescission of the Notice and for other procedural relief, protesting the limited comment period, the unclear scope" }, { "docid": "22171072", "title": "", "text": "elements of the media “have not communicated to whites a feeling for the difficulties and frustrations of being a Negro in the United States. They have not shown understanding or appreciation of — and thus have not communicated — a sense of Negro culture, thought, or history. . . . The world that television and newspapers offer to their black audience is almost totally white . . . .” Report of the National Advisory Commission on Civil Disorders 210 (1968). In response, the FCC promulgated equal employment opportunity regulations, see supra, at 554-555, and formal “ascertainment” rules requiring a broadcaster as a condition of license “to ascertain the problems, needs and interests of the residents of his community of license and other areas he undertakes to serve,” and to specify “what broadcast matter he proposes to meet those problems, needs and interests.” Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F. C. C. 2d 650, 682 (1971). The Commission explained that although it recognized there was “no single answer for all stations,” it expected each licensee to devote a “ ‘significant proportion’ ” of a station’s programming to community concerns. Id., at 686 (citation omitted). The Com mission expressly included “minority and ethnic groups” as segments of the community that licensees were expected to consult. See, e. g., Ascertainment of Community Problems by Broadcast Applicants, 57 F. C. C. 2d 418, 419, 442 (1976); Ascertainment of Community Problems by Noncommercial Educational Broadcast Applicants, 54 F. C. C. 2d 766, 767, 775, 776 (1975). The FCC held that a broadcaster’s failure to ascertain and serve the needs of sizable minority groups in its service area was, in itself, a failure of licensee responsibility regardless of any intent to discriminate and was a sufficient ground for the nonrenewal of a license. See, e. g., Chapman Radio and Television Co., 24 F. C. C. 2d 282, 286 (1970). The Commission observed that “[t]he problems of minorities must be taken into consideration by broadcasters in planning their program schedules to meet the needs and interests of the communities they are licensed to" }, { "docid": "18780423", "title": "", "text": "effective public participation in the license renewal process. Id. at 1441. Moreover, the Commission has failed to provide an adequate explanation for its rejection of an alternative proposal, duly submitted during the notice and comment proceedings, that would advance its stated goal. We therefore vacate the Commission’s order as arbitrary and capricious and remand the case for further proceedings. Background In 1981 the FCC initiated a sweeping deregulation of the radio industry. Specifically, it (1) deleted guidelines encouraging radio licensees to present a certain quantity of nonentertainment programming responsive to community needs, (2) abolished the ascertainment procedures by which the licensees identified community needs, (3) eliminated guidelines that limited the amount of broadcast time devoted to commercials, and (4) repealed the requirement that radio stations maintain program logs that recorded information about each program or commercial aired during the broadcast day. See Report and Order, Deregulation of Radio, 84 FCC2d 968 (1981) {First Report). At about the same time the FCC moved to simplify its license renewal process, replacing its previous long application forms with a “postcard” application. See Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad.Reg.2d (P & F) 740 (1981) {Renewal Decision). The FCC’s salutary purpose in enacting this deregulatory program was to reduce the paperwork burden borne by licensees. Renewal Decision, 49 Rad.Reg.2d at 742-743; First Report, 84 FCC2d at 1009. Mindful that the Commission has ample discretion to articulate policy within the broad framework of the Communications Act, we upheld the bulk of these changes when they were challenged before this court. In Black Citizens For A Fair Media v. FCC, 719 F.2d 407 (D.C.Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 3545, 82 L.Ed.2d 848 (1984), we upheld the new streamlined renewal process. In UCC III this court upheld the elimination of the ascertainment requirements, the minimum nonentertainment programming requirement, and the limit on commercials. 707 F.2d at 1435, 1436, 1438. The public file regulation, however, presented special difficulties. In its First Report the FCC had eliminated the requirement that licensees maintain a" }, { "docid": "4439655", "title": "", "text": "B. Ascertainment Procedures Petitioner NAACP challenges the Commission’s decision to eliminate all formal ascertainment procedures on several grounds: (1) that the Commission failed to explain adequately its departure from prior practices; (2) that the Commission failed to provide adequate evidentiary findings as support for its decision; and (3) that without these ascertainment procedures the Commission will inevitably involve itself in intensive content scrutiny, thereby raising First Amendment problems. See generally NAACP brief at 42-49. None of these arguments support reversal of the Commission’s decision. Formal ascertainment requirements were the end-product of many years of policy experimentation by the Commission. The basic principle underlying ascertainment is clear: For a radio licensee to provide programming responsive to issues facing the community, it must first ascertain just what those issues are. The Commission issued its first policy statement on the subject in 1960 and simply required the broadcaster to provide a statement describing the measures taken and efforts made “to dis cover and fulfill the tastes, needs, and desires of his community or service area.” See Report and Order, 84 FCC2d at 1073, JA 136. During the next decade the Commission continued to clarify and refine this requirement until, in 1971, it initiated full rulemaking procedures and issued a detailed ascertainment primer. This primer (and the separate primer subsequently developed for several applicants) set out the procedures to be followed in determining the demographic composition of the service area: consulting with community leaders in 19 categories (e.g., business, minority groups, women’s organizations, environmental and consumer groups, etc.); conducting general public opinion surveys; and then developing a list of community problems and needs to serve with responsive programming. See id. at 1074, JA 137. The Commission decision to eliminate these procedural ascertainment requirements was premised upon its conclusion that the benefits of such a methodology are far outweighed by the costs: We see no continuing reason to burden applicants, licensees or the Commission with detailed inquiries into which or how many community leaders were contacted, by whom, etc. * * * [T]he methodological approach to those problems only obscures the issue of responsiveness and" }, { "docid": "12606983", "title": "", "text": "children’s television commercialization guidelines. ACT assails this shift as arbitrary and capricious. As ACT sees it, the FCC’s explanation is entirely mute with respect to the “market-failure” arguments that supported the children’s commercialization guidelines in the first place. Inasmuch as the Commission has not examined such pivotal questions, ACT contends, the FCC has failed to provide a “reasoned basis” for its decision. B The second issue moves us beyond children’s television to a broader focus on television regulation generally. The 1984 Report significantly relaxed recordkeeping requirements applicable to television station programming. Previously, as a corollary to the FCC’s extensive pre-1984 quantitative programming guidelines, the Commission had required television stations to maintain comprehensive logs of all programming. With the elimination of quantitative guidelines, however, the Commission reasoned that “the [comprehensive] logging requirements no longer serveO any regulatory purpose.” 98 F.C.C.2d at 1108-09. Nevertheless, the FCC did not eliminate entirely television program logging requirements. Rather, it opted to apply the program logging policy adopted in the FCC’s general deregulation of radio broadcasting to the deregulation of television broadcasting. Id. at 1109. Under this policy, the Commission required television stations to maintain quarterly issues/programs lists containing “in narrative form, a brief description of at least five to ten issues to which the licensee gave particular attention____” Id. at 1108. In its revision order, the Commission augmented this log-keeping guideline with the requirement that stations maintain quarterly lists of programs that “have provided the most significant treatment of community issues.” Revision, 104 F.C.C.2d at 371-72 (emphasis added). ACT challenges these relaxed program log requirements as insufficient to provide information necessary to make license renewal proceedings an effective regulatory technique; in addition, ACT argues that the FCC’s treatment of program logging failed adequately to consider the special informational needs of challengers in comparative license renewal hearings. We consider the children’s television and program log challenges in turn. II It is axiomatic that an agency choosing to alter its regulatory course “must supply a reasoned analysis indicating that its prior policies and standards are being deliberately changed, not casually ignored.” Greater Boston Television Corp. v. FCC," }, { "docid": "22171110", "title": "", "text": "programming could not have their applica tions routinely processed by the Commission staff; rather, such applications were brought to the attention of the Commission itself. The Commission recently eliminated its ascertainment policies for commercial radio and television stations, together with its non-entertainment programming guidelines. See Deregulation of Radio, supra, at 975-999, reconsideration denied, 87 F. C. C. 2d 797 (1981), rev’d on other grounds sub nom. Office of Communication of the United Church of Christ v. FCC, 228 U. S. App. D. C. 8, 707 F. 2d 1413 (1983); Deregulation of Television, supra, at 1096-1101, reconsideration denied, 104 F. C. C. 2d 358 (1986), remanded on other grounds sub nom. Action for Children’s Television v. FCC, 261 U. S. App. D. C. 253, 821 F. 2d 741 (1987). The Commission found that the ascertainment rules imposed significant burdens on licensees without producing corresponding benefits in terms of responsiveness to community issues. See 98 F. C. C. 2d, at 1098 (“Ascertainment procedures . . . were intended as a means of ensuring that licensees actively discovered the problems, needs and issues facing their communities .... Yet, we have no evidence that these procedures have had such an effect”) (footnote omitted). Although the Commission has concluded that “the growth of traditional broadcast facilities” and “the development of new electronic information technologies” have rendered “the fairness doctrine unnecessary,” Report Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F. C. C. 2d 143, 197 (1985), the Commission has not made such a finding with respect to its minority ownership policies. To the contrary, the Commission has expressly noted that its decision to abrogate the fairness doctrine does not in its view call into question its “regulations designed to promote diversity.” Syracuse Peace Council (Reconsideration), 3 F. C. C. Red 2035, 2041, n. 56 (1988). Justice O’ConnoR offers few race-neutral alternatives to the policies that the FCC has already employed and found wanting. She insists that “[t]he FCC could directly advance its interest by requiring licensees to provide programming that the FCC believes would add to diversity.” Post, at 622. But the Commission’s" }, { "docid": "15459930", "title": "", "text": "proposed a definition based on having overcome disadvantages, the revenue-based definition was still the one in place (and the only one the FCC had formally considered) by the time we decided Prometheus II. In that decision we found the revenue-based definition to be arbitrary and capricious and remanded the matter to the Commission. Prometheus II, 652 F.3d at 469-71. This put a freeze on all ongoing initiatives that relied on an eligible entity definition. We concluded that, “[f]irst and foremost, the Diversity Order does not explain how the eligible entity definition adopted would increase broadcast ownership by minorities and women.” Id. at 470. We also said that it is hard to understand how measures using this definition would achieve the stated goal. For example, by the Commission’s own calculations, minorities comprise 8.5% of commercial radio station owners that qualify as small businesses [under the revenue-based definition], but 7.78% of the commercial radio industry as a whole — a difference of less than 1%. Thus, these measures cannot be expected to have much effect on minority ownership. Id. (internal citation omitted). We noted also that “the Commission referenced no data on television ownership by minorities or women and no data regarding commercial radio ownership by women. This is because, as the Commission has since conceded, it has no accurate data to cite.” Id. (emphases in original). At the time of Prometheus II, an FCC initiative to fix the data problem was underway. Specifically, in the spring of 2009 the Commission issued another notice of proposed rulemaking along with a report and order that instituted certain changes. The principal efforts related to Form 323, which the FCC uses to track race, ethnic origin, and gender data for broadcast licensees. Prior to 2009, full-power commercial AM, FM, and television broadcast stations typically had to file Form 323 biennially, but many other types of entities were exempt. The 2009 initiative ended the exemption for sole proprietorships, partnerships comprised of natural persons, and low-power television stations. See Promoting Diversification of Ownership in the Broadcasting Services, 2006 Quadrennial Regulatory Review — Review of the Commission’s Broadcast" }, { "docid": "22756102", "title": "", "text": "broadcast station serving a community — regardless of whether it is a radio or television station — common ownership of it and a co-located daily newspaper is barred. On the other hand, radio and television stations are given different weight to the extent that the presence of a radio station does not exempt a newspaper-television combination from divestiture, whereas the presence of a television station does exempt a newspaper-radio combination. The latter difference in treatment was explained on the ground that “[Realistically, a radio station cannot be considered the equal of either the paper or the television station in any sense, least of all in terms of being a source for news or for being the medium turned to for discussion of matters of local concern.” Order, at 1083. The Commission also explained that the regulations did not take into account the presence of magazines and other periodicals, or out-of-town radio or television stations not encompassing the entire community with a clear signal, since — aside from their often small market share — these sources could not be depended upon for coverage of local issues. See id., at 1081-1082. While noting that the Commission “would not be favorably inclined to grant any request premised on views rejected when the rule was adopted,” the Order stated that temporary or permanent waivers might be granted if the common owner were unable to sell his station or could sell it only at an artificially depressed price; if it could be shown that separate ownership of the newspaper and the broadcast station “cannot be supported in the locality\"; or, more generally, if the underlying purposes of the divestiture rule “would be better served by continuation of the current ownership pattern.” Id., at 1085. As to existing newspaper-broadcast combinations not subject to the divestiture requirement, the Commission indicated that, within certain limitations, issues relating to concentration of ownership would continue to be considered on a case-by-case basis in the context of license renewal proceedings. Thus, while making clear the Commission’s view that renewal proceedings were not a proper occasion for any \"overall restructuring” of the" }, { "docid": "12606996", "title": "", "text": "League, Inc. v. FCC, 617 F.2d 875, 879 n. 8 (D.C.Cir.1980). Nothing more need be said to warrant upholding the Commission for its “failure” to examine this latter-day claim. In evaluating petitioners’ two remaining arguments, we think it of no little relevance that the Commission has adopted for television stations precisely the recordkeeping requirements established in the FCC’s deregulation of radio broadcasting. Those requirements reflect in substantial part specifications articulated by this court in two prior rounds of judicial review. See Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983) (“UCC III”)-, Office of Communication of United Church of Christ v. FCC, 779 F.2d 702 (D.C.Cir.1985) (“UCC IV”). In the television and radio contexts alike, the Commission justified relaxing program log requirements on the ground that general elimination of quantitative programming and commercialization guidelines makes comprehensive logging unnecessary. We have previously had occasion to suggest that this rationale is adequate in radio if the replacement recordkeeping procedure adequately provides for essential information to challengers. See UCC IV, 779 F.2d at 714 (“significant treatment” approach “tailor made” to qualitative evaluation of programming). The Commission has embraced the same approach in television broadcasting. ACT distinguishes UCC III and UCC IV on the basis of the differences between radio and television markets. The Commission, as ACT sees it, cannot adopt the radio recordkeeping system for television because television stations exist in far smaller numbers than do radio stations in any given geographical market. ACT fails to buttress, however, its rather counter-intuitive notion that the comparatively small number of television stations somehow makes more stringent recordkeeping a necessity. What is more, ACT identifies no logical link between the two considerations, and in reflecting on the matter, we are at a loss to identify any such link. Indeed, to the extent a connection exists between the small number of television stations and proper levels of program logkeeping, the linkage tends to cut against ACT’s position. As CBS points out, the small number of television stations renders program monitoring by private parties substantially easier than comparable monitoring of the considerably more" }, { "docid": "22171109", "title": "", "text": "devoted to the discussion of public issues.” Ibid. The final factor was the amount of advertising aired by the licensee. Ibid. The Commission also devised policies to guard against discrimination in programming. For example, it determined that “arbitrar[y] refus[al] to present members of an ethnic group, or their views” in programming, or refusal to present members of such groups “in integrated situations with members of other groups,” would constitute a ground for license nonre-newal. Citizens Communications Center, 25 F. C. C. 2d 705, 707 (1970). In addition, the Commission developed nonentertainment guidelines, which called for broadcasters to devote a certain percentage of their programming to nonentertainment subjects such as news, public affairs, public service announcements, and other topics. See WNCN Listeners Guild, supra, at 598-599, n. 41; Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 98 F. C. C. 2d 1076, 1078 (1984) (hereinafter Deregulation of Television)-, Deregulation of Radio, 84 F. C. C. 2d 968, 975 (1981). Applicants proposing less than the guideline amounts of nonentertainment programming could not have their applica tions routinely processed by the Commission staff; rather, such applications were brought to the attention of the Commission itself. The Commission recently eliminated its ascertainment policies for commercial radio and television stations, together with its non-entertainment programming guidelines. See Deregulation of Radio, supra, at 975-999, reconsideration denied, 87 F. C. C. 2d 797 (1981), rev’d on other grounds sub nom. Office of Communication of the United Church of Christ v. FCC, 228 U. S. App. D. C. 8, 707 F. 2d 1413 (1983); Deregulation of Television, supra, at 1096-1101, reconsideration denied, 104 F. C. C. 2d 358 (1986), remanded on other grounds sub nom. Action for Children’s Television v. FCC, 261 U. S. App. D. C. 253, 821 F. 2d 741 (1987). The Commission found that the ascertainment rules imposed significant burdens on licensees without producing corresponding benefits in terms of responsiveness to community issues. See 98 F. C. C. 2d, at 1098 (“Ascertainment procedures . . . were intended as a means of ensuring that licensees actively discovered" }, { "docid": "15394830", "title": "", "text": "645. Moreover, the FCC has worked with renewal applications for many years and has developed considerable expertise and experience. See West Michigan Telecasters, Inc. v. FCC, 396 F.2d 688, 691 (D.C.Cir. 1968) (court “defer[s] to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission’s position is arbitrary, capricious or unreasonable”). Petitioners also argue that the FCC cannot dispense with the old system on the basis of a desire to relieve itself and/or licensees from regulatory burdens. Again, however, this argument is premised on petitioners’ belief that the new system will not serve the public interest. The FCC has reasonably rejected that premise and we must reject the conclusion. The Commission may consider regulatory burden in choosing between two procedures, each of which serves the public interest. The FCC is, moreover, statutorily authorized to reduce the regulatory burden on licensees and we find this to be additional support for the Commission’s action. Accordingly, the orders here under review are Affirmed. . Petitioners also include Henry Geller, Chinese for Affirmative Action, National Council of La Raza, and the NAACP. . A summary of this Notice may be found at 45 Fed.Reg. 47,444 (1980). . As the Commission noted, the commercial television application was 21 pages long, the non-commercial television application was 15 pages long, and the commercial radio form, while only two pages, was still a “substantial filing” by the time exhibits and attachments were added. Notice at 1. . These questions include (1) the licensee’s name and location, (2) whether the licensee has filed annual employment reports, (3) whether the license is in compliance with section 310 of the Communications Act which deals with alien control or ownership of broadcast stations, (4) whether a court or tribunal has entered an adverse finding as to particular conduct bearing on a licensee’s character, and (5) whether a licensee has placed all required documents in its public file. Notice, Appendix A. . Radio stations would not have to include such information under the FCC’s radio deregulations. See Office of Communication of the United Church" }, { "docid": "12606982", "title": "", "text": "of the Commission’s deregulation policy. ACT immediately petitioned for reconsideration of the 1984 Report. NAB, in its filing supporting the Commission and opposing ACT’s petition, requested the FCC to take an explicit stand with respect to the children’s television commercialization guidelines. Although ultimately rejecting ACT’s petition for rehearing, the Commission did accept the invitation to modify the 1984 Report. See Memorandum Opinion and Order on Reconsideration of the Report, 104 F.C.C.2d 358, 372 (May 28, 1986) (“Revision”). Responding to NAB’s call for clarification, the FCC indicated that the children’s television commercialization guidelines had indeed been eliminated by the 1984 Report. The Commission set forth the following explanation: Elimination of the policy is consistent with [the] Commission’s general de-emphasis regarding quantitative guidelines engendered in the Report and Order. Moreover, the Commission has consistently noted the importance of advertising as a support mechanism for the presentation of children’s programming. Revision, 104 F.C.C.2d at 370-71 (footnote omitted). These two sentences, along with portions of two modest footnotes, constitute the entirety of the FCC’s explanation of its elimination of children’s television commercialization guidelines. ACT assails this shift as arbitrary and capricious. As ACT sees it, the FCC’s explanation is entirely mute with respect to the “market-failure” arguments that supported the children’s commercialization guidelines in the first place. Inasmuch as the Commission has not examined such pivotal questions, ACT contends, the FCC has failed to provide a “reasoned basis” for its decision. B The second issue moves us beyond children’s television to a broader focus on television regulation generally. The 1984 Report significantly relaxed recordkeeping requirements applicable to television station programming. Previously, as a corollary to the FCC’s extensive pre-1984 quantitative programming guidelines, the Commission had required television stations to maintain comprehensive logs of all programming. With the elimination of quantitative guidelines, however, the Commission reasoned that “the [comprehensive] logging requirements no longer serveO any regulatory purpose.” 98 F.C.C.2d at 1108-09. Nevertheless, the FCC did not eliminate entirely television program logging requirements. Rather, it opted to apply the program logging policy adopted in the FCC’s general deregulation of radio broadcasting to the deregulation of television" }, { "docid": "22791009", "title": "", "text": "TV, 71 F. C. C. 2d 1296, 1308 (1979). Furthermore, we note that the Commission has recently reexamined its regulation of commercial radio broadcasting in light of changes in the structure of the radio industry. See Notice of Inquiry and Proposed Rulemaking, In the Matter of Deregulation of Radio, 73 F. C. C. 2d 457 (1979). As a result of that re-examination, it has eliminated rules requiring maintenance of comprehensive program logs, guidelines on the amount of nonentertainment programming radio stations must offer, formal requirements governing ascertainment of community needs, and guidelines limiting commercial time. See Deregulation of Radio, 46 Fed. Reg. 13888 (1981) (to be codified at 47 CFR Parts 0 and 73). These cases do not require us to consider whether the Commission’s present or past policies in the area of nonentertainment programming comply with the Act. We attach some weight to the fact that the Commission has consistently expressed a preference for promoting diversity in entertainment programming through market forces, but our decision ultimately rests on our conclusion that the Commission has provided a reasonable explanation for this preference in its Policy Statement. We decline to overturn the Commission’s Policy Statement, which prefers reliance on market forces to its own attempt to oversee format changes at the behest of disaffected listeners. Of course, the Commission should be alert to the consequences of its policies and should stand ready to alter its rule if necessary to serve the public interest more fully. As we stated in National Broadcasting Co. v. United States: \"If time and changing circumstances reveal that the ‘public interest’ is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations.” 319 U. S., at 225. IV Respondents contend that the Court of Appeals’ judgment should be affirmed because, even if not violative of the Act, the Policy Statement conflicts with the First Amendment rights of listeners “to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969). Red" }, { "docid": "2775857", "title": "", "text": "problem and the beneficial effects of the agency’s response to that problem are concededly susceptible of some empirical demonstration, the agency must do something more than merely posit the existence of the disease sought to be cured. In the context of this case the question becomes whether the Commission has adequately proven that without the protection afforded by the must-carry rules the economic health of local broadcast television is threatened by cable. We address each issue in turn. 1. In a burst of deregulatory activity unparalleled in its history, the FCC has recently dismantled large portions of the extensive regulatory structure under which both broadcast and cable television have labored for many decades. See, e.g., Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 49 Fed.Reg. 33588 (1984) (to be codified at Part 73 of 47 C.F.R.) (Revision of Programming). Details aside, the thrust of this movement has been the Commission’s belief that the public interest in diverse video options is best served by deferring to the marketplace. Id.; Economic Inquiry Report, 71 FCC2d at 697. As part of this comprehensive endeavor, the Commission has eliminated numerous regulations which, like the must-carry rules, were premised on the desire to protect local broadcasters from competition from the expanding cable industry. See, e.g., Syndicated Exclusivity Rules, 79 FCC2d 663 (deleting distant-signal and syndicated-exclusivity rules). In addition, it has authorized a wide array of new multichannel video competitors to over-the-air broadcast television and exempted them from any obligation to carry local programming. See, e.g., Inquiry Into the Development of Regulatory Policy in Regard to Direct Broadcast Satellites, 90 FCC2d 676, 691-692 (1982) (DBS Inquiry). Petitioner TBS contends that in the course of this deregulation the Commission has disclaimed the very premises on which the must-carry rules are founded. If, in fact, the FCC has repudiated the economic assumptions that underlie the must-carry rules, the suggestion that they serve an important governmental interest (or any interest at all) would be wholly unconvincing. As the Home Box Office court stated, “[A] ‘regulation perfectly reasonable and appropriate in the" } ]

[ { "docid": "18172410", "title": "", "text": "court as an “article of commerce,” whereas the mixture of synthetic resin, carbon black, and graphite in the case at bar was obviously not an article of commerce but was created immediately, in point of time, be fore the subsequent calendering operation which formed it into the film or cloth made with its use. We think these matters were cited by our appellate court to add emphasis to its ruling, but we do not think they were the sine qua non of the ruling. The principle of the Bernard case would seem to be that if the material, or product, specified in paragraph 1539(b), of which synthetic resin is the chief binding agent, actually does exist as such material or product, whether in activated or unactivated form, prior to the manufacturing operation by which the ultimate article is made, the requirements of the preexistence rule or doctrine are satisfied and the merchandise is classifiable under paragraph 1539(b). The manufacturing situation in the case at bar and in the Bernard case may be compared, for purposes of distinction between simultaneous and sequential manufacturing operations, with that which was involved in the case of United States v. Accurate Millinery Co., Roberts, Reilly & Sons, et al., 42 C.C.P.A. (Customs) 229, C.A.D. 599. That case also involved the preexistence doctrine, but it there appeared that the process which made the ultimate product, a fur felt hood, also, at the same time, made the felt itself, and at no time did felt, as such, exist before the hood existed. It was there held that the requirements of the preexistence doctrine were not met. By contrast, in the case at bar, there was a point of time at which the material in mixed form existed, as a mixture, before the film or cloth was made with the use of the mixture. Since it appears that the merchandise is classifiable under paragraph 1539(b) and that it is also classifiable under paragraph 216, the question becomes one of relative specificity, that is to say, which of the two provisions of the tariff act which embrace the imported" } ]

[ { "docid": "18656919", "title": "", "text": "of paragraph 1539(b) to merchandise such as that at bar, we note that the plaintiff’s contention is predicated upon certain legislative history tending to show that the provision for— * * * manufactures wholly or in chief value of * * * any * * * product of which any synthetic resin or resin-like substance is 'the chief binding agent * * * was inserted in paragraph 1539 (b), as originally enacted, in order to make provision for a group of products known as molded products, in the manufacture of which a mixture containing synthetic resin, or a resinlike substance, and a filler were molded under heat and pressure. Specifically, it is the plaintiff’s contention that the quoted provision of paragraph 1539(b) is limited to manufactures made by molding processes with the use of a compound known as Bakelite, or similar compounds. In its decision in the case of United States v. J. E. Bernard & Co., Inc., 42 C.C.P.A. (Customs) 69, C.A.D. 573, the majority of our appellate court indicated that the language of paragraph 1539(b), above quoted, was unambiguous. However, to verify its position and to demonstrate that there was no ambiguity in the language of the enactment, the majority quoted the legislative history, which is here relied upon by the plaintiff, i.e., Senate Deport No. 37, 7lst Congress, 1st session, as follows: The phrase “or of any other product of which any synthetic resin or resinlike substance is the chief binding agent,” has been inserted in order to make specific provision for an important group of products known as molded products. These are made by molding under heat or heat and pressure a mixture containing synthetic resin or a resinlike substance and a filler, such as wood flour and pigments. Molded products included in this provision cover a wide range and are used chiefly in electrical or mechanical machinery where requirements of electrical insulation properties, mechanical strength, exactness of form and size, and resistance to destructive agents, render them of peculiar importance. These molded products find a multitude of uses. Paragraph 7 of the stipulation, hereinbefore quoted," }, { "docid": "18656918", "title": "", "text": "contends that the language of paragraph 1539 (b) is so plain, clear, and distinct as to preclude resort to legislative history for its interpretation; that, under the stipulated facts, the merchandise at bar is within the purview of that paragraph; and that the legislative history of paragraph 1021, cited by the plaintiff in its brief, does not show a clear congressional intent to include articles such as those at bar in the said paragraph. Further, defendant contends that, in the course of judicial interpretation of the language of the paragraph over a number of years, the legislative history thereof was examined and the view thereof contended for by the plaintiff herein was rejected, and the interpretation of the language was held to be controlled by the statutory rule of construction of ejusdem generis. Defendant points out that, under the application of that rule, merchandise such as that at bar was held not to be covered by the provisions of paragraph 1021. Taking up, first, the issue raised by the plaintiff with respect to the applicability of paragraph 1539(b) to merchandise such as that at bar, we note that the plaintiff’s contention is predicated upon certain legislative history tending to show that the provision for— * * * manufactures wholly or in chief value of * * * any * * * product of which any synthetic resin or resin-like substance is 'the chief binding agent * * * was inserted in paragraph 1539 (b), as originally enacted, in order to make provision for a group of products known as molded products, in the manufacture of which a mixture containing synthetic resin, or a resinlike substance, and a filler were molded under heat and pressure. Specifically, it is the plaintiff’s contention that the quoted provision of paragraph 1539(b) is limited to manufactures made by molding processes with the use of a compound known as Bakelite, or similar compounds. In its decision in the case of United States v. J. E. Bernard & Co., Inc., 42 C.C.P.A. (Customs) 69, C.A.D. 573, the majority of our appellate court indicated that the language of" }, { "docid": "18172402", "title": "", "text": "Mollisox, Judge: The merchandise here involved is described on the invoice as “carbon cloth” and was assessed with duty at the rate of 23 cents per pound and 19 per centum ad valorem under the provision in paragraph 1539(b), Tariff Act of 1930, as modified by T.D. 54108, for — ■ Manufactures wholly or in chief value of * * * any * * * product of which any synthetic resin or resin-like substance is the chief binding agent. At the trial of the issue, it was conceded by counsel for the defendant that if the court should find the foregoing classification to be incorrect, the correct classification of the merchandise is as claimed in the protest, viz, under paragraph 216, as modified by T.D. 51802, as— Articles or wares composed wholly or in part of carbon or graphite, wholly or partly manufactured, not specially provided for, with duty assessment at 15 per centum ad valorem. A sample of the involved merchandise is before us as plaintiff’s illustrative exhibit 1. It appears to be a strip of a black, flexible substance. There is no dispute as to the manner in which the merchandise reached the condition in which it was imported and as illustrated by exhibit 1. Briefly, it is as follows: The materials used were carbon black, graphite, and a synthetic resin referred to as a poly-isobutylene resin. These three materials were mixed together, and, during the mixing, the resin became, as the single witness called put it, “a kind of liquid” and “something that will flow under high pressure.” The mixture was then made into a film or cloth on a calender, which is evidently a machine with heated rolls which produces a film of the desired thickness, and which, at the same time, also produces the desired width of the film. The production process was a continuous one and resulted in a long, 6-inch wide strip of film which had the carbon and graphite evenly dispersed in the film. After being allowed to cool, the strip was wound on a core, which is the form in which" }, { "docid": "18656921", "title": "", "text": "establishes that Gerflex is manufactured as shown on pages 4 and 5 of exhibit 1. According to that exhibit, a mixture is made of a synthetic resin, to wit, polyvinyl chloride, and other materials, such as plastifying and stabilizing agents, minerals, and colors. Presumably, the materials other than the synthetic resin in the mixture are “fillers”; at any rate, there is no evidence indicating that they are not. The mixture is “calendered,” which process, according to Webster’s New International Dictionary, second edition, 1945, and from an examination of the simplified diagram shown on the cited pages, consists of pressing the mixture through rollers. In calendering, it appears that heat and pressure are applied, so that the final product is a smooth sheet of homogeneous material which is later cut into the imported tiles. As has been stated, a majority of our appellate court held, in the Bernard case, supra, that the provision in paragraph 1539(b) here in question was unambiguous. That provision is a designation by composition and description, and the imported tiles are within every particular of the provision, both as to composition and description, for they are manufactures (Gerflex) of a product (the mixture of the synthetic resin and the fillers) in which a synthetic resin (polyvinyl chloride) is the chief binding agent. It seems clear, therefore, that the language of the statute covers the articles at bar. If the legislative history cited and relied upon by the plaintiff were held to be indicative of a congressional intent to limit the provision to molded products and to exclude calendered products from the coverage of the provision, it would follow that the legislative history would be used to establish an ambiguity in statutory language which has been judicially determined to be unambiguous. This, of course, is not a proper use of legislative history in statutory construction. Railroad Commission of Wisconsin et al. v. Chicago, Burlington & Quincy Railroad Co., 257 U.S. 563, 589. Moreover, it seems to us that the process of calendering is akin to the process of molding in that it forms the products resulting therefrom by" }, { "docid": "18656933", "title": "", "text": "intent as is exhibited by the quoted statement of Senator Smoot and the reports of the committee of conference, the precedent established by the prior decisions in respect of the issue before us should be held to have been erroneous and not controlling of our action in the present case. Roeller-Struss Co. v. United States, 12 Ct. Cust. Appls. 189, T.D. 40170; Sol Raphael v. United States, 23 C.C.P.A. (Customs) 253, T.D. 48110; and United States v. R. J. Saunders & Co., Inc., 42 C.C.P.A. (Customs) 128, C.A.D. 584. If the prior decisions establishing the precedent were the unap-pealed rulings of this court, we would have no hesitancy, on the basis of the legislative history, hereinbefore set out, in holding that the rule of ejusdem generis is inapplicable to the general provision for floor coverings in paragraph 1021, and that the plastic floor tiles at bar are classifiable thereunder. Further, we would hold that in the competition between the provision in paragraph 1539(b), under which the merchandise was classified, and the general provision for floor coverings in paragraph 1021, the latter provision, being a designation by use, prevails over the relatively less specific provision in paragraph 1539 (b), which is a designation by composition and description. However, the issue is one which has been before our appellate court four times, and, although in the last case, the Damrak case, a majority of the court stated that it considered the question to be a close one, it specifically ruled that the congressional intent was that in order to be classified under paragraph 1021 an article must be ejusdem gen-eris with the articles specifically enumerated in that paragraph. Further, the majority stressed the importance, in such situations, of adherence to long and consistent judicial interpretation. Under these circumstances, we feel that in the present case our course should be to overrule the protest claims. Judgment will issue accordingly." }, { "docid": "23474915", "title": "", "text": "the provision for manufactures of india rubber in paragraph 1537 (b), Tariff Act of 1930, as modified by T.D. 53865, but this claim, although stated in the amendment of the protest filed in this case, does not seem to have been pressed either at the trial of the issue or in the briefs filed on behalf of the plaintiff. Finally, if it be held that the merchandise is not dutiable under any of the provisions above cited, by similitude, plaintiff claims it to be properly dutiable under the nonenumerated manufactured articles provision in paragraph 1558, as modified by the Presidential proclamation reported in T.D. 52739, at the rate of 10 per centum ad valorem. There does not seem to be any question but that if the merchandise is not properly classifiable under paragraph 1539(b), as assessed, it is not dutiable directly under any of the enumerations in the dutiable list of the tariff act (excluding from consideration the provisions of paragraph 1558 for nonenumerated manufactured articles). It is, therefore, apparent that the first question which must be determined is whether the merchandise at bar is properly classifiable as assessed by the collector, i.e., under the provision in paragraph 1539(b) for manufactures wholly or in chief value of any product of which any synthetic resin or resinlike substance is the chief binding agent. If it is, of course, none of the plaintiff’s claims can be held to apply to the merchandise. Although there is no direct evidence or any formal concessions on the point, it appears from colloquy between counsel reported on the record of the trial that the collector’s classification was based upon findings by a chemist in the United States Customs Laboratory that the ash content of the merchandise at bar exceeded 8 per centum. Simply stated, it appears that the ash content is what remains after a given sample of the merchandise is burned, and it also appears that if the ash content were below 8 per centum, it was the administrative practice not to classify merchandise such as that at bar under paragraph 1539(b), while if the" }, { "docid": "18656932", "title": "", "text": "provision. for floor coverings in paragraph 1021 should include articles which differ in material and texture from those enumerated in the particular provisions of that paragraph — was the subject of legislative consideration, and the intent to include such items was clearly made manifest. Statements of sponsors or those in charge of a bill during the course of its passage, and reports of committees to whom it was committed for consideration and action, are among the most reliable and authoritative indicia of the legislative intent, and may be resorted to where, as here, it has been determined that the language of the enactment is ambiguous and where such statements or reports are explanatory of the particular issue before the court. United States v. St. Paul, Minneapolis & Manitoba Railway Co., 247 U.S. 310, 318; Duplex Printing Press Co. v. Peering, 254 U.S. 443, 474-5; Mitchell, Secretary of Labor v. Kentucky Finance Vo., Inc., et al., 359 U.S. 290, 293-5. It would seem that, in the light of so positive an indication of the actual legislative intent as is exhibited by the quoted statement of Senator Smoot and the reports of the committee of conference, the precedent established by the prior decisions in respect of the issue before us should be held to have been erroneous and not controlling of our action in the present case. Roeller-Struss Co. v. United States, 12 Ct. Cust. Appls. 189, T.D. 40170; Sol Raphael v. United States, 23 C.C.P.A. (Customs) 253, T.D. 48110; and United States v. R. J. Saunders & Co., Inc., 42 C.C.P.A. (Customs) 128, C.A.D. 584. If the prior decisions establishing the precedent were the unap-pealed rulings of this court, we would have no hesitancy, on the basis of the legislative history, hereinbefore set out, in holding that the rule of ejusdem generis is inapplicable to the general provision for floor coverings in paragraph 1021, and that the plastic floor tiles at bar are classifiable thereunder. Further, we would hold that in the competition between the provision in paragraph 1539(b), under which the merchandise was classified, and the general provision for floor" }, { "docid": "18172411", "title": "", "text": "of distinction between simultaneous and sequential manufacturing operations, with that which was involved in the case of United States v. Accurate Millinery Co., Roberts, Reilly & Sons, et al., 42 C.C.P.A. (Customs) 229, C.A.D. 599. That case also involved the preexistence doctrine, but it there appeared that the process which made the ultimate product, a fur felt hood, also, at the same time, made the felt itself, and at no time did felt, as such, exist before the hood existed. It was there held that the requirements of the preexistence doctrine were not met. By contrast, in the case at bar, there was a point of time at which the material in mixed form existed, as a mixture, before the film or cloth was made with the use of the mixture. Since it appears that the merchandise is classifiable under paragraph 1539(b) and that it is also classifiable under paragraph 216, the question becomes one of relative specificity, that is to say, which of the two provisions of the tariff act which embrace the imported article more precisely describes it. We observe that the provision in paragraph 1539(b) is for manufactures “wholly or in chief value of” a given product or material, while the provision in paragraph 216 is for articles or wares composed “wholly or in part of” other materials. It has been long held that, no evidence of contrary legislative intent appearing, such provisions are not equally specific, the former being the more specific of the two on the reasoning that — • * * * a greater percentage of the value of the article would have to be of the material called for in that paragraph than would be necessary for classification under the less specific paragraph. [International Expediters, Inc. v. United States, 41 C.C.P.A. (Customs) 156, C.A.D. 543, and cases therein cited.] Ho legislative intent contrary to the application of this rule of relative specificity is manifest, and, for the foregoing reasons, judgment will issue overruling the protest herein." }, { "docid": "18656920", "title": "", "text": "paragraph 1539(b), above quoted, was unambiguous. However, to verify its position and to demonstrate that there was no ambiguity in the language of the enactment, the majority quoted the legislative history, which is here relied upon by the plaintiff, i.e., Senate Deport No. 37, 7lst Congress, 1st session, as follows: The phrase “or of any other product of which any synthetic resin or resinlike substance is the chief binding agent,” has been inserted in order to make specific provision for an important group of products known as molded products. These are made by molding under heat or heat and pressure a mixture containing synthetic resin or a resinlike substance and a filler, such as wood flour and pigments. Molded products included in this provision cover a wide range and are used chiefly in electrical or mechanical machinery where requirements of electrical insulation properties, mechanical strength, exactness of form and size, and resistance to destructive agents, render them of peculiar importance. These molded products find a multitude of uses. Paragraph 7 of the stipulation, hereinbefore quoted, establishes that Gerflex is manufactured as shown on pages 4 and 5 of exhibit 1. According to that exhibit, a mixture is made of a synthetic resin, to wit, polyvinyl chloride, and other materials, such as plastifying and stabilizing agents, minerals, and colors. Presumably, the materials other than the synthetic resin in the mixture are “fillers”; at any rate, there is no evidence indicating that they are not. The mixture is “calendered,” which process, according to Webster’s New International Dictionary, second edition, 1945, and from an examination of the simplified diagram shown on the cited pages, consists of pressing the mixture through rollers. In calendering, it appears that heat and pressure are applied, so that the final product is a smooth sheet of homogeneous material which is later cut into the imported tiles. As has been stated, a majority of our appellate court held, in the Bernard case, supra, that the provision in paragraph 1539(b) here in question was unambiguous. That provision is a designation by composition and description, and the imported tiles are within" }, { "docid": "18656915", "title": "", "text": "on pages 29 to 52 inclusive of the said Exhibit “1”. 10. Gerflex is an article composed of Polyvinyl chloride, calcium carbonate, mineral pigment, phthalic esters, phosphate esters, halogenated hydrocarbon and organic salts of lead barium and cadmium, in which said article the Polyvinyl chloride, a synthetic resin, is the chief binding agent. 11. Submitted herewith for the record and marked Collective Exhibit “3” are two tiles included in the subject entry, which are representative of said Gerflex. Plaintiff claims that the plastic floor tiles at bar are not properly classifiable under paragraph 1589(b), supra, but are embraced by the provision in paragraph 1021 of the Tariff Act of 1930, as modified by T.D. 54108, for “Floor coverings not specially provided for” with duty assessment at 17 per centum ad valorem. Alternatively, plaintiff contends that if the merchandise at bar is not covered directly by the above-mentioned provision of paragraph 1021, it is dutiable thereunder, by similitude, by virtue of paragraph 1559(a) of the tariff act, as amended by the Customs Simplification Act of 1954 (68 Stat. 1137). Inasmuch as we have found, as will appear, that there is at least one direct enumeration of merchandise chargeable with duty in the Tariff Act of 1930 under which the plastic floor tiles at bar are classifiable, it is unnecessary to consider the claim for classification by similitude. So far as pertinent, the involved tariff provisions, as originally enacted and as they existed at the time of importation of the merchandise at bar, read as follows: Paragraph 1539 (b), Tariff Act of 1930, as enacted: * * * manufactures wholly or in chief value of any of the foregoing [laminated products of which any synthetic resin or resin-like substance is the chief binding agent], or of any other product of which any synthetic resin or resin-like substance is the chief binding agent, 50 cents per pound and 40 per centum ad valorem. Paragraph 1539 (b), as modified by T.D. 54108: Manufactures wholly or in chief value of any product described in the preceding item 1539(b), or of any other product of which" }, { "docid": "20351830", "title": "", "text": "that the castings involved in this proceeding are therein provided for, it being established that they have not been advanced in condition subsequent to the casting process to the point where they have been “made up into articles or parts thereof,” as above construed, or into “finished machine parts.” It will be observed that while paragraph 372, supra, provides for machine parts, not specially provided for, Congress was careful in its use of terms in paragraph 327, supra, to exclude therefrom machine parts only if finished, whereas the castings before us are unfinished. Upon the record before us, to adopt the reasoning of the Government would result in emasculating and rendering inoperative the provisions for iron castings in said paragraph 327. For the reasons above stated, and upon more mature deliberation, it is our considered opinion that the court erred in the McKenzie case, supra, in holding that the rough iron castings there before it were excluded from paragraph 327, supra. In the case of Herbert Morris (Inc.) et al. v. United States, 51 Treas. Dec. 1135, Abstract 2336, the merchandise before the court likewise consisted of rough, unmachined castings. There, the court was clearly of the opinion that the castings which it stated had not been advanced to the point where they were parts of articles were dutiable in paragraph 327 of the Tariff Act of 1922 (which, so far as it pertains to castings, was in the identical language of paragraph 327 of the present act), rather than as parts of machines, not specially provided for, in paragraph 372 of the Tariff Act of 1922, as classified by the collector. The decision in the Morris case, supra, was rendered in 1927, and it must be presumed that Congress re-enacted the provision for castings in the Tariff Act of 1930 with knowledge of the construction which had been placed upon it by the court. This amounts to legislative approval of judicial interpretation, and as was stated by our appellate court in United States v. Bassichis Co. et al., 16 Ct. Cust. Appls. 410, T. D. 43133, at p. 414—" }, { "docid": "18656916", "title": "", "text": "(68 Stat. 1137). Inasmuch as we have found, as will appear, that there is at least one direct enumeration of merchandise chargeable with duty in the Tariff Act of 1930 under which the plastic floor tiles at bar are classifiable, it is unnecessary to consider the claim for classification by similitude. So far as pertinent, the involved tariff provisions, as originally enacted and as they existed at the time of importation of the merchandise at bar, read as follows: Paragraph 1539 (b), Tariff Act of 1930, as enacted: * * * manufactures wholly or in chief value of any of the foregoing [laminated products of which any synthetic resin or resin-like substance is the chief binding agent], or of any other product of which any synthetic resin or resin-like substance is the chief binding agent, 50 cents per pound and 40 per centum ad valorem. Paragraph 1539 (b), as modified by T.D. 54108: Manufactures wholly or in chief value of any product described in the preceding item 1539(b), or of any other product of which any synthetic resin or resin-like substance is the chief binding agent_21$ per lb. and 17% ad val. Paragraph 1021, Tariff Act of 1930, as originally enacted: Common China, Japan, and India straw matting, and floor coverings made therefrom, 3 cents per square yard; carpets, carpeting, mats, matting, and rugs, wholly or in chief value of flax, hemp, or jute, or a mixture thereof, 35 per centum ad valorem; all other floor coverings not specially provided for, 40 per centum ad valorem. Paragraph 1021, as modified by T.D. 54108: Moor coverings not specially provided for (except grass or rice straw floor coverings, and not including felt-base floor coverings)_17% ad val. Plaintiff relies strongly upon the legislative history of paragraphs 1539 (b) and 1021, supra, at the time of the enactment of the Tariff Act of 1930, as indicating that paragraph 1539(b) was not intended by Congress to include articles such as the plastic floor tiles at bar, and that it was intended that such articles should be covered by paragraph 1021, Defendant, on the other hand," }, { "docid": "18656923", "title": "", "text": "the application of heat and pressure. For an analogous situation in which calendered products were held to be within the purview of paragraph 1539(b), compare the description of the manufacture of the tiles at bar with that of the carbon cloth involved in the case of Burgess Battery Co. v. United States, 43 Cust. Ct. 189, C.D. 2125. We are of the opinion, therefore, that the provision in paragraph 1539 (b), supra, is applicable to merchandise such as that at bar. The next point to be considered is the plaintiff’s claim that the provision in paragraph 1021 of the tariff act, as modified, for “floor coverings not specially provided for” is more specific in its application to the merchandise at bar than the provision in paragraph 1539(b). As pointed out by counsel for the defendant in the brief filed in its behalf, the question of the scope of the above provision (and its predecessor in the same language in paragraph 1022 of the Tariff Act of 1922) has been before this and our appellate court at least four times. Cited are Gimbel Bros., Inc. v. United States, 22 C.C.P.A. (Customs) 146, T.D. 47111; United States v. J. L. Hudson Co., 23 id. 313, T.D. 48177; United States v. Inter-Maritime Forwarding Co., Inc., 41 id. 107, C.A.D. 537; and United States v. Damrak Trading Co., Inc., 43 id. 77, C.A.D. 611. -ffo purpose would be served by a detailed review here of the facts in those cases and the conclusions reached by our appellate court, in view of the fact that an excellent account of the first three of such cases is contained in the opinion of the majority of the Court of Customs and Patent Appeals, in its opinion in the Damrak case, at pages 80 and 81. In its opinion in the latter case, the majority pointed out that in the three prior cases it had determined that the rule of ejusdem generis was applicable in interpreting paragraph 1021, and that among the elements of similarity to be compared for the purpose of that rule were those of materials" }, { "docid": "23474914", "title": "", "text": "provision, plaintiff denies that the plastic sheeting at bar is dutiable directly under any of the dutiable enumerations of the tariff act. It claims that the enumerated article which the imported plastic sheeting most resembles in the use to which it may be applied is patent leather, dutiable under the provision in paragraph 1530 of the Tariff Act of 1930, as modified by the Presidential proclamation reported in T.D. 51802, reading, so far as pertinent, as follows: Leather (except leather provided for in subparagraph (d) of paragraph 1530, Tariff Act of 1930), made from hides or shins of cattle of the bovine species: * * ¡i'. :■: * * * Patent leather_7%% ad val. Alternatively, plaintiff claims that the enumerated article which the imported plastic sheeting most resembles in the use to which it may •be applied is oilcloth or coated cotton cloths, dutiable under the provisions of paragraph 907 of the said act, as modified by T.D. 51802, at the rate of 12ya per centum ad valorem. Plaintiff also claims, alternatively, by similitude, under the provision for manufactures of india rubber in paragraph 1537 (b), Tariff Act of 1930, as modified by T.D. 53865, but this claim, although stated in the amendment of the protest filed in this case, does not seem to have been pressed either at the trial of the issue or in the briefs filed on behalf of the plaintiff. Finally, if it be held that the merchandise is not dutiable under any of the provisions above cited, by similitude, plaintiff claims it to be properly dutiable under the nonenumerated manufactured articles provision in paragraph 1558, as modified by the Presidential proclamation reported in T.D. 52739, at the rate of 10 per centum ad valorem. There does not seem to be any question but that if the merchandise is not properly classifiable under paragraph 1539(b), as assessed, it is not dutiable directly under any of the enumerations in the dutiable list of the tariff act (excluding from consideration the provisions of paragraph 1558 for nonenumerated manufactured articles). It is, therefore, apparent that the first question which" }, { "docid": "23474923", "title": "", "text": "and upon the reasons advanced by him for his conclusions, may be accepted by the court as establishing the fact that the ash content of exhibits 3-A to 3-F, inclusive, represented pigment, and did not represent filler materials. We are satisfied from the record as made that the plaintiff established that the provisions of paragraph 1539(b) of the Tariff Act of 1930, as modified, under which classification of the sheetings at bar was made, were not applicable to the merchandise. Inasmuch as it appears that the merchandise is not dutiable directly under any of the enumerations in the dutiable list of the tariff act (excluding from consideration, of course, the provisions of the catchall paragraph 1558), our next inquiry is whether the imported sheeting is properly dutiable, by similitude, under the provisions of paragraph 1559(a), supra, to any article or articles enumerated in the act as chargeable with duty. At the trial of the issue, counsel for the plaintiff offered the testimony of the vice president of the importing corporation, a man well qualified in the use of plastic films and sheetings such as those at bar and of oilcloth and chintz, a coated cotton fabric. His testimony clearly established that in the uses to which they may be applied the imported sheetings closely resemble oilcloth and chintz. Counsel for the defendant has conceded, in the brief filed in its behalf, that if paragraph 1539 (b), supra, is inapplicable to the merchandise, plaintiff’s claim for classification by similitude to oilcloth and to coated cotton cloths under paragraph 907 is correct. However, plaintiff lias pressed its claim for duty by similitude to patent leather. We do not find much, if anything, in the record which could be considered to support that claim. There is some evidence that the imported sheetings have been used in the manufacture of pouches, cases, and bags, and also for the uppers and soles of slippers. However, there is nothing to indicate that in such uses it resembles or is similar to patent leather. Moreover, it appears that its suitability for slipper use (assuming that to be" }, { "docid": "6261140", "title": "", "text": "there was a preexisting product having synthetic resin as the chief binding agent and that the imported merchandise was in chief value of that product. The record establishes that the three layers existed as separate components before being joined together and that synthetic resin was the chief binding agent of the middle layer. No evidence has been presented as to the value of the components. Therefore, the collector’s presumed finding that the middle layer was the component in chief value stands. Thus, it is evident that the merchandise is a manufacture in chief value of a product of which synthetic resin is the chief binding agent. The merchandise is also a laminated product, since the record and the exhibits clearly establish that it was constructed with layers. Richard Crittall Radiant Heating Corp. v. United States, 27 Cust.Ct. 193, C.D. 1369. Paragraph 1539(b) of the Tariff Act of 1930, as originally enacted, provided for “Laminated products (whether or not provided for elsewhere in this Act) * * This provision has been held to be invasive in character so that every other provision of the tariff act must yield to it. Imperial International Corp. v. United States, 39 Cust.Ct. 240, C.D. 1934; Standard Trading Co. et al. v. United States, 55 Cust.Ct. 295, C.D. 2593; Rune Nicklasson, Inc., dba Slima Abrasive Co. et al. v. United States, 57 Cust.Ct. 456, C.D. 2835. Therefore, if the imported merchandise is a laminated product of which any synthetic resin is the chief binding agent, it must be classified under one of the provisions for such products in paragraph 1539(b) rather than under the provision for manufactures wholly or in chief value of a product of which a synthetic resin is the chief binding agent. Richard Crittall Radiant Heating Corp. v. United States, supra; Crown Abrasive Co., Inc. v. United States, 34 Cust.Ct. 347, Abstract 58990. The same result would be reached under the ordinary principles of relative specificity since the provision for laminated products of which any synthetic resin is the chief binding agent is more difficult to satisfy than that for manufactures wholly or" }, { "docid": "18656917", "title": "", "text": "any synthetic resin or resin-like substance is the chief binding agent_21$ per lb. and 17% ad val. Paragraph 1021, Tariff Act of 1930, as originally enacted: Common China, Japan, and India straw matting, and floor coverings made therefrom, 3 cents per square yard; carpets, carpeting, mats, matting, and rugs, wholly or in chief value of flax, hemp, or jute, or a mixture thereof, 35 per centum ad valorem; all other floor coverings not specially provided for, 40 per centum ad valorem. Paragraph 1021, as modified by T.D. 54108: Moor coverings not specially provided for (except grass or rice straw floor coverings, and not including felt-base floor coverings)_17% ad val. Plaintiff relies strongly upon the legislative history of paragraphs 1539 (b) and 1021, supra, at the time of the enactment of the Tariff Act of 1930, as indicating that paragraph 1539(b) was not intended by Congress to include articles such as the plastic floor tiles at bar, and that it was intended that such articles should be covered by paragraph 1021, Defendant, on the other hand, contends that the language of paragraph 1539 (b) is so plain, clear, and distinct as to preclude resort to legislative history for its interpretation; that, under the stipulated facts, the merchandise at bar is within the purview of that paragraph; and that the legislative history of paragraph 1021, cited by the plaintiff in its brief, does not show a clear congressional intent to include articles such as those at bar in the said paragraph. Further, defendant contends that, in the course of judicial interpretation of the language of the paragraph over a number of years, the legislative history thereof was examined and the view thereof contended for by the plaintiff herein was rejected, and the interpretation of the language was held to be controlled by the statutory rule of construction of ejusdem generis. Defendant points out that, under the application of that rule, merchandise such as that at bar was held not to be covered by the provisions of paragraph 1021. Taking up, first, the issue raised by the plaintiff with respect to the applicability" }, { "docid": "17601487", "title": "", "text": "CCPA 69, C.A.D. 573, a “product” for purposes of paragraph 1539(b) must have independent existence as an article of commerce. The only “product” having a binding agent of a “synthetic resin or resin like substance” having independent commercial existence is the particle board itself. (e) Under applicable decisions of the Supreme Court and this court, sanding and cutting unfinished particle board to the imported 4'x8' sizes does not make a “manufacture of” the product under paragraph 1539(b) and the Customs Court and this court in its original decision were in error in sustaining the protest. Upon reconsideration we are convinced that appellant is correct and that our original decision was in error. We hereby withdraw it, substituting therefore the following opinion. The Index Industrial Corp., Party in Interest, hereafter referred to as appellant, imported the merchandise in issue which was classified as “wallboard” under the provisions of paragraph 1402 of the Tariff Act of 1930, as modified by the Annecy Protocol to the GATT, T.D. 52373, supplemented by Presidential Proclamation, T.D. 52462. Duty was assessed thereon at 5 per cent ad valorem. Appellee, an American manufacturer, protested the entry pursuant to the provisions of section 516(b) of that Act as amended (19 U.S.C. 1516(b) ), claiming the merchandise properly classifiable under paragraph 1539(b) of said Act, as modified by the Sixth Protocol of Supplementary Concessions to the GATT, T.D. 54108, as manufactures wholly or in chief value of any product of which a synthetic resin is the chief binding agent. The Customs Court sustained the protest, C.D. 2256. Appellant appeals from that judgment. The respective provisions read: Paragraph 1402 and T.D. 52373: “Paper board, wallboard, and pulp-board, including cardboard (but not including leather board or compress leather, and except strawboard, solid fiber shoe board and all counter board, and pulp-board in rolls for use in the manufacture of wallboard), not plate finished, super-calendered or friction calendered, laminated by means of an adhesive substance, coated, surface stained or dyed, lined or vat-lined, embossed, printed, decorated or ornamented in any manner, nor cut into shapes for boxes or other articles and not" }, { "docid": "23474912", "title": "", "text": "Mollison, Judge: The merchandise the subject of this protest consists of a polyvinyl chloride type of plastic sheeting in various colors and decorative effects, which was assessed with duty at the rate of 25 cents per pound and 20 per centum ad valorem under the provision in paragraph 1539 (b) of the Tariff Act of Í930, as modified by the Presidential proclamation reported in T.D. 52739, for: Manufactures wholly or in chief value of any product of which any synthetic resin or resin-like substance is the chief binding agent * * *. Plaintiff claims that the foregoing provision of paragraph 1539(b) is not applicable to the merchandise at bar for either of two reasons: First, on the ground that the imported merchandise consists only of a synthetic resin, plus an opacifier or pigment for the decoration of the sheeting, and that there is no filler substance or “product” of which the synthetic resin was a binding agent; and, second, on the ground that the legislative history of the provision shows that it was intended to refer only to molded products, which it contends the plastic sheeting at bar is not. Alternative claims for lower rates of duty are stated in the protest and by amendment thereof. Plaintiff relies, primarily, upon claims made under the similitude provision, paragraph 1559(a), Tariff Act of 1930, as amended (68 Stat. 1137), reading as follows: Par. 1559. (a) Each and every imported article, not enumerated in this Act, which is similar in the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned; and if any nonenumerated article equally resembles in that particular two or more enumerated articles on which different rates of duty are chargeable, it shall be subject to the rate of duty applicable to that one of such two or more articles which it most resembles in respect of the materials of which it is composed. By its claim tinder tlie similitude" }, { "docid": "18656922", "title": "", "text": "every particular of the provision, both as to composition and description, for they are manufactures (Gerflex) of a product (the mixture of the synthetic resin and the fillers) in which a synthetic resin (polyvinyl chloride) is the chief binding agent. It seems clear, therefore, that the language of the statute covers the articles at bar. If the legislative history cited and relied upon by the plaintiff were held to be indicative of a congressional intent to limit the provision to molded products and to exclude calendered products from the coverage of the provision, it would follow that the legislative history would be used to establish an ambiguity in statutory language which has been judicially determined to be unambiguous. This, of course, is not a proper use of legislative history in statutory construction. Railroad Commission of Wisconsin et al. v. Chicago, Burlington & Quincy Railroad Co., 257 U.S. 563, 589. Moreover, it seems to us that the process of calendering is akin to the process of molding in that it forms the products resulting therefrom by the application of heat and pressure. For an analogous situation in which calendered products were held to be within the purview of paragraph 1539(b), compare the description of the manufacture of the tiles at bar with that of the carbon cloth involved in the case of Burgess Battery Co. v. United States, 43 Cust. Ct. 189, C.D. 2125. We are of the opinion, therefore, that the provision in paragraph 1539 (b), supra, is applicable to merchandise such as that at bar. The next point to be considered is the plaintiff’s claim that the provision in paragraph 1021 of the tariff act, as modified, for “floor coverings not specially provided for” is more specific in its application to the merchandise at bar than the provision in paragraph 1539(b). As pointed out by counsel for the defendant in the brief filed in its behalf, the question of the scope of the above provision (and its predecessor in the same language in paragraph 1022 of the Tariff Act of 1922) has been before this and our appellate court" } ]

[ { "docid": "22077823", "title": "", "text": "how statutory trust funds held by a debtor for the benefit of others are to be treated for purposes of the Act’s “property,” “preference,” “priority,” “statutory lien,” or “discharge,” provisions. To unravel this question, we will look to the language and purpose of the Bankruptcy Act in relationship to property rights created under state law, the purpose of the Michigan statutory trust, the practices of the construction industry and the problems of the industry which the statutory trust was designed to remedy. We will also look to the new Bankruptcy Act and its legislative history to see if its treatment of statutory trusts should be used as persuasive authority. III. Conceptually, the Michigan builders trust fund statute can be viewed in any one of three ways: (1) as imposing a traditional trust on the contractor’s funds for the benefit of subcontractors, laborers and material-men; or (2) as creating a security arrangement in the nature of a statutory lien; or (3) as creating no security or other interest recognizable under the Bankruptcy Act. Viewed as a traditional trust, the beneficial interests in the trust fund would not be the “property” of the bankrupt contractor or his estate in bankruptcy. The subcontractors would own the beneficial title to the trust, and the contractor would simply hold legal title to the funds as trustee. Although the Bankruptcy Act does not deal expressly with trusts, the Supreme Court in an early case under the Bankruptcy Act of 1867 established that funds held in trust by a bankrupt debtor are immune from the claims of general creditors so long as the funds can be traced. Hawkins v. Blake, 108 U.S. 422, 435-36, 2 S.Ct. 804, 27 L.Ed. 775 (1882). This rule has not been changed by the current Bankruptcy Act, and the courts have continued to apply it. See Pearlman v. Reliance Insurance Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962); First National Bank v. Staake, 202 U.S. 141, 26 S.Ct. 580, 50 L.Ed. 967 (1905). A statutory lien, on the other hand, is not effective against the claims of the trustee" } ]

[ { "docid": "12239464", "title": "", "text": "541(d), these courts have explained that it is consistent “with the letter and with the spirit of the Bankruptcy Code.” Great Plains, 38 B.R. at 907. This circuit has never resolved the tension between sections 541(d) and 544(a). Nor do we need to do so here. The result in this case is the same under either approach. Under the minority approach, CNB’s interest in the trust assets as beneficiary of the constructive trust does not come into General Coffee’s bankruptcy estate. Where a debtor holds property in a constructive trust for another, “ft]he rule is elementary that the estate succeeds only to the title and rights in the property that the debtor possessed_ Therefore ..., the estate will generally hold such property subject to the outstanding interest of the beneficiaries.” Georgia Pacific Corp. v. Sigma Serv. Corp., 712 F.2d 962, 968 (5th Cir.1983) (quoting 4 Collier on Bankruptcy II 541.13 (L.King 15th ed. 1987)); see also Quality Holstein Leasing, 752 F.2d at 1012. Thus, because § 541(d) prevails over a trustee’s strong-arm powers under § 544(a), CNB has a right to recover the assets of the constructive trust. CNB has the same rights under the majority approach. Section 544(a) confers on the bankruptcy trustee the rights of a hypothetical “ideal creditor” under state law. 4 Collier on Bankruptcy 11544.02. General Coffee contends that because a constructive trust is essentially an equitable lien, it is defeated by a subsequent lienholder without notice. General Coffee is correct that under Florida law “an equitable lien is superior to the right of all persons except bona fide purchasers, or subsequent valid lienholders, without notice,” Blumin v. Ellis, 186 So.2d 286, 295-96 (Fla. 2d DCA), cert. denied, 189 So.2d 634 (Fla.1966), but General Coffee goes too far. Although it is difficult to define a constructive trust precisely, it is not an equitable lien under Florida law. Florida law defines an equitable lien as follows: An equitable lien is not an estate of property in the thing itself nor a right to recover the thing, that is, a right which may be the basis of a" }, { "docid": "14669363", "title": "", "text": "Bankruptcy Code, a debtor’s legal and equitable interests in property, “as of the commencement of the case,” constitute “[property of the estate,” 11 U.S.C. § 541(a)(1). Property in which the debtor holds only legal title and not an equitable interest, however, becomes property of the estate “only to the extent of a debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold,” id. § 541(d). That is, the bankruptcy estate does not include “property of others in which the debtor ha[s] some minor interest such as a lien or bare legal title,” United States v. Whiting Pools, Inc., 462 U.S. 198, 204 n. 8, 103 S.Ct. 2309, 2313 n. 8, 76 L.Ed.2d 515 (1983); see 4 Collier on Bankruptcy If 541.13, at 541-75 (15th ed.1989) (estate succeeds only to the title and rights that the debtor possessed); In re Quality Holstein Leasing, 752 F.2d 1009, 1012 (5th Cir.1985) (same). Where the debtor’s “conduct gives rise to the imposition of a constructive trust, so that the debtor holds only bare legal title to the property, subject to a duty to reconvey it to the rightful owner, the estate will generally hold the property subject to the same restrictions,” In re Flight Transp. Corp. Securities Litigation, 730 F.2d 1128, 1136 (8th Cir.1984); see Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 968 (5th Cir.1983). Indeed, the Supreme Court has declared that, while the outer boundaries of the bankruptcy estate may be uncertain, “Congress plainly excluded property of others held by the debt- or in trust at the time of the filing of the petition,” Whiting Pools, 462 U.S. at 205 n. 10; see S.Rep. No. 989, 95th Cong., 2d Sess. 82 and H.R.Rep. No. 595, 95th Cong., 2d Sess. 368, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5868, 6323-24; see also In re Kennedy & Cohen, Inc., 612 F.2d 963, 965 (5th Cir.) (under previous bankruptcy statute, property held by debt- or in constructive trust “belongs to the beneficiary and never becomes a part of" }, { "docid": "21591735", "title": "", "text": "United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), that is quoted by the Georgia Pacific court. 712 F.2d at 967. The Whiting Court stated that property of the estate does not include “property of others held by the debtor in trust at the time of the filing of the petition.” 103 S.Ct. at 2315 n. 10 (citing legislative history to 11 U.S.C.A. § 541) (emphasis added). The T&B district court did not find the existence of a trust in favor of any party. The majority evidently finds a trust for the benefit of the materialmen. This the majority cannot do because the burden of establishing a trust relationship is on the party claiming the benefit of such a relationship. Georgia Pacific, 712 F.2d at 969 (citing Collier on Bankruptcy, para. 541.13 at 541-67). The materialmen are not parties to this litigation; consequently, no trust for their benefit can be created. Further, the majority is incorrect in suggesting that either the Georgia Pacific court or the Whiting Court created a rule excluding all property held for the benefit of another from property of the estate. This is apparent from Georgia Pacific’s, holding: Georgia Pacific’s checks, held by Sigma for the benefit of materialmen, became property of the estate. Likewise, T & B’s deposits, held by R & R for the benefit of its materialmen should become part of R & R’s bankrupt estate. C. Conclusion No Supreme Court or Eleventh Circuit decisions exist that control this case. The court in Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983), however, held that disputed funds similar to those in T&B belong to a bankruptcy estate. In addition, the funds in T&B came from an account named “Roger & Roger.” All persons who signed the account signature card identified themselves as R & R officials. R & R co-signed all checks from the account. The account, therefore, constituted a legal interest of R & R. Accordingly, when R & R filed for bankruptcy, the funds in the account became property of the" }, { "docid": "10299343", "title": "", "text": "or lack of jurisdiction. In effect, the district court imposed a constructive trust upon the documents on the theory that they were the property of Remington U.S. even though in possession of the Dutch debtor. A parallel situation exists in American domestic law. Under state law, the imposition of a constructive trust upon a debtor’s property generally confers on the true owner of the property an equitable interest in the property superi- or to that of the trustee. Matter of Quality Holstein Leasing, 752 F.2d 1009 (5th Cir.1985); In re N.S. Garrott & Sons, 772 F.2d 462 (8th Cir.1985). A trustee may be required to turn over to the beneficiary of a state law constructive trust the property that the debtor holds subject to such a trust. In re Auto-Train Corp., 810 F.2d 270 (D.C.Cir.1987); Georgia Pacific Corp. v. Sigma Serv. Corp., 712 F.2d 962 (5th Cir.1983). These holdings stem from the proposition that the bankrupt estate succeeds only to the title and rights that the debtor possessed in the property, and further subjects that property to the outstanding interest of trust beneficiaries. See 4 Collier on Bankruytcy § 541.13 (15th ed. 1979). The American court’s turn-over order is entitled to compliance because the matter of ownership of the physical property has been fully litigated in the district court, and there has been no contrary ruling in The Netherlands based on evidentiary findings. Indeed, the Dutch supervising judge has subscribed to the transfer of the documents to Remington U.S., provided it be done in Holland. In these circumstances, entry of the order does not offend comity or derogate the respect due the Dutch bankruptcy proceedings. See generally Nadelmann, The National Bankruptcy Act and the Conflict of Laws, 59 Harv.L. Rev. 1025 (1946). The question remaining at this point is which party must assume the cost of shipping the documents to Remington U.S. That decision, we believe, should be resolved by the district court after it reviews the pertinent facts. C. We now turn to the most controversial aspéct of the district court’s September order — the imposition of a constructive" }, { "docid": "5162089", "title": "", "text": "as of the commencement of the case” wherever located or by whomever held. 11 U.S.C. § 541(a)(1). Appellant and Debtor concede section 541 gives a debtor wide latitude in dealing with estate assets. See Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 966 (5th Cir.1983), quoting U.S. v. Whiting Pools Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Pursuant to sections 541(b) and (c)(2), certain assets are specifically excepted from the broad interpretation give to the term “property of the estate.” 11 U.S.C. § 541(b) and (c)(2). These excepted assets do not apply here. Appellant recognizes that its ability to have any interest in the surplus of the defined benefit pension plans fully “refunded” is largely dependent upon the plans remaining outside of Debtor’s estate. Appellant argues that the pension plans in question were not property of Debtor’s estate, and therefore the Bankruptcy Court lacked jurisdiction to grant Debtor’s motion to merge the plans. Appellant, however, concedes that if the surplus in the over-funded plans were assets of Debtor’s estate, then Debtor may have a right to use the surplus in its ordinary course of business. Although a claimant may have an equitable interest in the assets of a debtor, such an interest, by itself, is not sufficient to remove the surplus from property of the debtor’s estate under Section 541 of the Bankruptcy Code. The Code does not remove an asset from the bankrupt’s estate simply because a third party has claimed an interest in that asset. Property that the bankrupt holds subject to the interest of another entity, becomes property of the estate subject to that interest. 11 U.S.C. § 541(d). See also, Georgia Pacific Corp. v. Sigma Serv. Corp., 712 F.2d 962, 966 (5th Cir.1983). Appellant's alleged equitable interest in the surplus of the pension plans would not be sufficient to remove the plans from Debtor’s estate. Appellant contends, therefore, that the pension funds are not property of the estate because they are being held by Debtor in a constructive trust for Appellant. The Eleventh Circuit noted in T & B Scottdale" }, { "docid": "21591719", "title": "", "text": "the case.” 11 U.S.C.A. § 541(a)(1) (1979) (emphasis added). The extent and validity of the debtor’s interest in property is a question of state law. See In re Livingston, 804 F.2d 1219, 1221 (11th Cir.1986). Under Georgia law, “[djeposits in a bank to the credit of a debtor become property of the estate under section 541(a)(1)”, see King, 4 Collier on Bankruptcy 11541.11 at 541-71 (15th Ed.1979) (“Collier”), accord In re Williams, 61 B.R. 567, 570 (Bankr.N.D.Tex.1986), subject to the interest of any party for whose benefit the funds may be beneficially held. Collier at 541-72 & 73; Georgia Pacific Corp. v. Sigma Serv. Corp., 712 F.2d 962 (5th Cir.1983) (property held by debtor for the benefit of another would not become part of the bankruptcy estate). The legislative history of 11 U.S.C.A. § 541 makes it clear that funds in the debtor’s possession held for a third-party do not become part of the estate in bankruptcy: Situations occasionally arise where property ostensibly belonging to the debtor will actually not be property of the debtor, but will be held in trust for another. For example, if the debtor has incurred medical bills that were covered by insurance, and the insurance company had sent the payment of the bills to the debtor before the debtor had paid the bill for which the payment was reimbursement, the payment would actually be held in a constructive trust for the person to whom the bill was owed. H.R.Rep. No. 595, 95th Cong., 1st Sess. 368 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 82 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5868, 6324. See also Collier, If 541.01 at 541-7; cf. Georgia-Pacific, 712 F.2d at 967, 971-72 (checks in debtor’s possession made payable jointly to claimant and debtor held part of debtor’s estate because no clear bilateral agreement stated that checks belonged to claimant). It is undisputed that the funds deposited by T & B in the account were meant for R & R’s materialmen. T & B’s contracts with R & R and with the City of Atlanta expressly stated the" }, { "docid": "12906619", "title": "", "text": "assert three different grounds for reversing the district court’s affirmance of the bankruptcy judge’s order: (1) the bankruptcy judge had no jurisdiction to decide this matter because the action could and should have been brought in state court, (2) the bankruptcy judge had no jurisdiction to disburse the insurance proceeds in the separate account since the funds were not part of Pentell’s estate, and (3) the bankruptcy judge should not have given Hopkins’s mechanics lien priority over Weinstein and Kosbie’s second mortgage lien. Since we .find that the evidence that the insurance proceeds were part of the debtor’s estate was inadequate, we confine our discussion to that issue alone. Weinstein and Kosbie argue that the bankruptcy judge had no jurisdiction to grant Hopkins’s motion to disburse funds from the separate bank account since the insurance proceeds were not part of Pen-tell’s estate. Specifically appellants claim that (1) since the real estate was held in a land trust the debtor technically had no ownership interest and (2) any interest in the real estate or the insurance proceeds is held by the partnership and not any individual partner such as Pentell. Although the convoluted nature of the relationships in this case makes the determination of the extent of the debtor’s estate difficult, we hold that on the limited record before this court, a record devoid of information about the nature of the partnership, the bankruptcy court did not have jurisdiction over the insurance proceeds. Weinstein and Kosbie’s claim that the property at issue is owned solely by the land trust, while of suspect validity, is irrelevant to this case. At issue here are the proceeds from a fire insurance policy on the apartment building, not the property itself. “It is well established that money payable as the proceeds of a fire policy taken out before bankruptcy for the debt- or’s benefit does not arise from property, but from a contract between insurer and insured.” 4 Collier on Bankruptcy ¶ 541.-13 (L. King 15th ed. 1979). See In re Balsier, 215 Fed. 134, 135 (W.D.Pa.1914) (discussing the above principle as well established and" }, { "docid": "21591731", "title": "", "text": "Cir.1983), held that the disputed funds belong to the estate. T & B Scottdale Contractors, Inc. v. United States, No. C-83-2253-A (N.D.Ga. May 28, 1985) at 8,10. The majority relies on Georgia Pacific Corp. v. Sigma Service Corp., but concludes that the funds do not belong to the estate. Consequently, the majority or the district court misreads the case. A. Section 541 A bankruptcy estate consists of “all legal and equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1). If the debtor holds property in trust for another, however, the property does not become part of the estate. The following example, in section 541’s legislative history and quoted by the majority, illustrates this principle. Situations occasionally arise where property ostensibly belonging to the debtor will actually not be property of the debt- or, but will be held in trust for another. For example, if the debtor has incurred medical bills that were covered by insurance, and the insurance company had sent the payment of the bills to the debt- or before the debtor had paid the bill for which the payment was reimbursement, the payment would actually be held in a constructive trust for the person to whom the bill was owed. H.R.Rep. No. 595, 95th Cong., 1st Sess. 368 (1977); Sen.Rep. No. 989, 95th Cong., 2d Sess. 82, reprinted in 1978 U.S.Code Cong. & Admin.News 5868, 6324 (quoted in Collier on Bankruptcy, para. 541.01 at 541; Georgia Pacific, 712 F.2d at 967 n. 4; Majority Opinion, at 1376). The majority compares the hypothetical debtor and physician to R & R and R & R’s materialmen and concludes that “[i]n neither situation do the funds belong to the bankrupt estate.” Majority Opinion, at 1376. According to the opinion, the Georgia Pacific court recognized that all property held by a debtor for the benefit of another is not part of the debtor’s bankruptcy estate. This conclusion, however, appears to mischaracterize the rule set forth in Georgia Pacific. B. Case Law 1. Georgia Pacific: Are the Facts Distinguishable? In Georgia Pacific, Sigma, a" }, { "docid": "17385803", "title": "", "text": "Koner, 12 Ark.App. 38, 671 S.W.2d 235, 238 (1984). Although not a classic case for the imposition of a constructive trust, we are satisfied that debtors had no cognizable equitable interests in the main fund in 1983. Based upon the facts of this case and our review of the record, we find that the debtors retained, at most, only bare legal title to the main fund in 1983. We are led to this conclusion because we think debtors’ conduct gives rise to the imposition of a constructive trust under Arkansas law and general principles of equity. Imposition of a constructive trust under state law upon a debtor’s property generally confers on the true owner of the property an equitable interest in the property superior to the trustee’s or debtors in possession. In re Quality Holstein Leasing, 752 F.2d 1009, 1012 (5th Cir.1985). The estate succeeds to only such title and rights in the property as the debtor had at the time the petition was filed. See Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 968 (5th Cir.1983). Thus, where under state law the debtor’s conduct gives rise to a constructive trust, so that the debtor holds only bare legal title to this property, subject to a duty to reconvey it to the rightful owner, the estate will generally hold property subject to the same restrictions. In re Flight, supra, 730 F.2d at 1136. So, while we agree with the district court that the entire fund is technically property of the estate, we cannot agree that the debtors’ interests in the main fund are unlimited. Since the estate cannot acquire greater interests than those which the debtors had, we conclude that the estate holds the main fund, apart from the excess interest, in trust, subject to the equitable interests of others. As such the bankruptcy court is bound to recognize those equitable interests. Georgia Pacific Corp. v. Sigma Service Corp., supra, 712 F.2d at 968. Accordingly, we affirm the turnover order but remand this case to the district court to direct debtors to set aside and eventually pay over" }, { "docid": "4727536", "title": "", "text": "competing claims. In response, Excel and TMC, the Debtor’s subcontractors, assert that the money is not property of the estate and should not be turned over to the Debtor. In addition, Excel has made a cross-motion requesting that NYCTA be compelled to pay Excel the money owed Excel by the Debtor. Similarly, TMC has made a motion requesting that it also be directly paid by NYCTA. The Debtor and UJB further requested that the money received from NYCTA be turned over to UJB in partial satisfaction of its secured claim less $10,000 to be used to pay an accountant for the preparation of invoices to NYCTA for additional work performed. Chase objects to the payment of the monies to the Debtor, UJB or the accountant. DISCUSSION I. Property of the Estate Section 541(a) of the Bankruptcy Code defines property of the estate as “all legal or equitable interests of the debtor.” This definition of property has been given “the broadest possible interpretation” and includes an interest that is strictly contingent. In re Brown, 734 F.2d 119, 123 (2d Cir.1984). An admitted liability owed to a debt- or under a contract is property of the estate, even though the debtor’s subcontractors may have claims against parties to the contract. In re J.F. Naylor and Co. 67 B.R. 184, 189, modified, 67 B.R. 192 (Bankr.M.D.La.1986); see Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983). In In re J.F. Naylor and Co. the debtor was a subcontractor whose suppliers made claims against the general contractor and the property owner. 67 B.R. at 186. The Bankruptcy Court held that the entire amount owed to the debtor by the general contractor was property of the estate, notwithstanding the suppliers’ claims. Id. at 189. NYCTA admits that it owes the Debtor a minimum of $738,629 for work completed pursuant to the contract. See supra pp. 984-85. The Debtor has an equitable interest in these funds and therefore they are property of the estate. Excel and TMC base their argument that the monies owed are not property of the estate on the Supreme" }, { "docid": "8747919", "title": "", "text": "in Gittens’ hands as trust funds” and Gittens never “possessed the right to use the contract balances at issue ... for its own benefit.” Id. at 372-73: The Sixth Circuit addressed a similar issue in Federal Insurance Co. v. Fifth Third Bank, 867 F.2d 330 (6th Cir.1989). There, the court held that two progress payments delivered by the State of Ohio to a contractor pursuant to a construction agreement were trust funds to be held for the benefit of job creditors. Id. at 331-34. Thus, the contractor’s lender could not offset-these payments against the debt it was owed by the contractor. Id. at 332-34. Even those decisions that ultimately hold that a contract or state law does not create an express or constructive trust adhere to the principle that a bankruptcy estate does not include those properties to which the debtor retains only bare legal title. See, e.g., In re Sakowitz, Inc., 949 F.2d 178, 181 (5th Cir.1991) (finding neither an express nor implied trust but noting that “property held in trust for another is not property of the estate under 11 U.S.C. § 541 in the event of the trustee’s bankruptcy”); Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 968 (5th Cir.1983) (finding that neither state lien statutes nor a joint-check arrangement created constructive trusts for the benefit of Sigma’s materialmen but noting that if “all or part of the money so owed was subject to a constructive trust in favor of the suppliers ... the bankruptcy court would be required to recognize those equitable interests and, perhaps, the debtor in possession’s sole permissible administrative act ... would be to pay over or endorse the sums due to the beneficial owners of the property”). , Thus, if Marrs-Winn held “only legal title and not an equitable interest” in the funds located in the Magna Account as a result of a valid trust arrangement, Giberson could not properly acquire an interest in those proceeds via the Financing Order. As such, we must determine whether the Subcontract created a valid trust arrangement. 2. The Express Trust. The question of" }, { "docid": "12239463", "title": "", "text": "the time of the filing of the debtor’s bankruptcy petition with all the rights and powers of various creditors and transferees of the debtor so as to avoid incomplete or improperly perfected transfers of the debtor and thereby insure an equality of distribution among the debtor’s general unsecured creditors. See, e.g., 4 L. King, Collier on Bankruptcy 11541.01, 541-5 to 541-9 and 11 544.01, 544-2 to 544-4 (15th ed. 1982); 2 W. Norton, Bankruptcy Law and Practice §§ 29.01 and 30.01 (1982).‘ Section 544(a) in fact contemplates that the debtor has no remaining interest in the property which is the subject of the avoided transaction. The trustee is thus given the ability to bring into the estate, in addition to the debtor’s property as defined by § 541(a) and limited by § 541(d), any property which he can obtain through his avoidance powers under the Bankruptcy Code, including his ability to invalidate certain transfers by the debtor under § 544(a). Anderson, 30 B.R. at 1009-10. Although this result seems to contradict the language of § 541(d), these courts have explained that it is consistent “with the letter and with the spirit of the Bankruptcy Code.” Great Plains, 38 B.R. at 907. This circuit has never resolved the tension between sections 541(d) and 544(a). Nor do we need to do so here. The result in this case is the same under either approach. Under the minority approach, CNB’s interest in the trust assets as beneficiary of the constructive trust does not come into General Coffee’s bankruptcy estate. Where a debtor holds property in a constructive trust for another, “ft]he rule is elementary that the estate succeeds only to the title and rights in the property that the debtor possessed_ Therefore ..., the estate will generally hold such property subject to the outstanding interest of the beneficiaries.” Georgia Pacific Corp. v. Sigma Serv. Corp., 712 F.2d 962, 968 (5th Cir.1983) (quoting 4 Collier on Bankruptcy II 541.13 (L.King 15th ed. 1987)); see also Quality Holstein Leasing, 752 F.2d at 1012. Thus, because § 541(d) prevails over a trustee’s strong-arm powers under §" }, { "docid": "12906626", "title": "", "text": "responded to the Supreme Court’s ruling in its General Order of December 20, 1982, providing that in “related proceedings\" a bankruptcy judge may not enter a judgment or dispositive order, but rather must submit findings, conclusions, and a proposed judgment or order to the district judge unless the parties consent to entry of judgment by the bankruptcy judge. General Order ¶ D(3)(b) (N.D.Ill.Dec. 20, 1982). The Order defines related proceedings as “those civil proceedings that, in the absence of a petition in bankruptcy, could have been brought in a district court or a state court.” Id. ¶ D(3)(a). Related proceedings do not include, inter alia, \"orders to turn over property of the estate.” Id. The Order further provides that a proceeding “is not a related proceeding merely because the outcome will be affected by state law.” Id. If the insurance proceeds are deemed to be part of the estate then Hopkins’s motion requested an order to turn over property of the estate. Since only the bankruptcy judge, as opposed to the state courts, is empowered to disburse estate funds it is impossible to view the motion as a “related proceeding.” Thus if the court finds that it does in fact have jurisdiction over the fire insurance proceeds there would be no jurisdictional problem under Northern Pipeline. . Depending on the nature of the insurance contract, the partnership may have a nondiscretion-ary duty to apply the insurance funds to the debt it owes Hopkins Elevator. Under some circumstances the receipt of funds earmarked for another creates a type of “constructive trust” which can survive the bankruptcy of the debtor-\"trustee”. See generally Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir. 1983), Selby v. Ford Motor Co., 590 F.2d 642 (6th Cir.1979), In re Bagwell Coatings, Inc., 34 B.R. 193 (Bankr.M.D.La.1983). See also 4 Collier at ¶ 541.13." }, { "docid": "10169890", "title": "", "text": "defendants contend that the principle of unjust enrichment creates a constructive trust in their favor. Pursuant to section 541 of the Bankruptcy Code, the estate succeeds only to the title and rights in property held by the debtor. Thus, where the debtor is in possession of property impressed by a trust which is valid under the Code, the estate will generally hold such property subject to the outstanding interests of the beneficiaries. 4 L. King, Collier on Bankruptcy ¶ 541.13 (15th ed. 1985). When property of the estate is alleged to be held in trust, the burden rests upon the claimant to establish the original trust relationship. In short, the defendants in this case must (1) establish title; (2) identify the trust fund or property; and (3) trace the property in the event the trust fund or property has been mingled with the general property of the debtor. Id. see also Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 969 (5th Cir.1983). Since the existence and nature of the Debtor’s interest in property is governed by nonbankruptcy law, reference must be made to the law of Massachusetts on trusts. The defendants’ burden in the instant case is exceedingly difficult for two reasons. In the first place, as the defendants admit, there are no Massachusetts cases dealing with the question of whether a trust is imposed upon a general contractor under a contractual mandate to pay subcontractors their portion of the general contractor’s requisitions. Secondly, unlike the situation in some states, the Massachusetts legislature has not adopted a builders’ trust fund statute, and no statutory provi sions exist apart from the mechanic’s lien provisions, cf. M.G.L. c. 254, § 1 et seq., requiring contractors to pay in full all ma-terialmen or subcontractors from funds they receive from an owner. In Becker v. Dutton, 269 Mass. 320, 324, 168 N.E. 804 (1929), the Massachusetts Supreme Judicial Court indicated that whether a trust is created by a contract is to be ascertained by the words used in that contract or by the terms of that contract, however phrased, which show in" }, { "docid": "12906625", "title": "", "text": "bankruptcy of the partnership we would have no trouble including the property in the estate. Since, however, we are only concerned with Pentell’s estate the analysis would be more difficult because as a partner he has only an indivisible joint interest in specific partnership property. III.Ann.Stat. ch. IO6V2 § 26 (Smith-Hurd 1952). .The apparent harshness of this rule is softened by the fact that lien creditors can, and often do, obtain an assignment of the insurance policy or arrange to be a beneficiary of the policy. Collier at ¶ 541.12. . Should the bankruptcy court find that the funds were properly placed in the debtor’s estate then there can be no problem under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). In Northern Pipeline a plurality of the Court held that the Constitution bars Article I bankruptcy judges from exercising jurisdiction over \"all matters related to those arising under the bankruptcy laws.” Id. at 76, 102 S.Ct. at 2874. The Northern District of Illinois responded to the Supreme Court’s ruling in its General Order of December 20, 1982, providing that in “related proceedings\" a bankruptcy judge may not enter a judgment or dispositive order, but rather must submit findings, conclusions, and a proposed judgment or order to the district judge unless the parties consent to entry of judgment by the bankruptcy judge. General Order ¶ D(3)(b) (N.D.Ill.Dec. 20, 1982). The Order defines related proceedings as “those civil proceedings that, in the absence of a petition in bankruptcy, could have been brought in a district court or a state court.” Id. ¶ D(3)(a). Related proceedings do not include, inter alia, \"orders to turn over property of the estate.” Id. The Order further provides that a proceeding “is not a related proceeding merely because the outcome will be affected by state law.” Id. If the insurance proceeds are deemed to be part of the estate then Hopkins’s motion requested an order to turn over property of the estate. Since only the bankruptcy judge, as opposed to the state courts, is empowered" }, { "docid": "21591718", "title": "", "text": "certainly has more work to do in overseeing the administration of the R & R estate. The relevant question is whether the bankruptcy court can exercise any discretion in implementing the district court’s order. It cannot. The district court’s decision that the funds belong in the bankruptcy estate leaves nothing for the bankruptcy court to do except begin the everday' steps of the bankruptcy adjudication process. See Matter of Fox, 762 F.2d 54, 55 (7th Cir.1985) (“ ‘[Fjinal’ does not mean the same thing in bankruptcy as in other federal cases. A proceeding to establish a claim against a bankrupt estate is final for the purposes of appeal when it is over and done with, even though the bankruptcy goes on.”). B. Merits 1. Summary Judgment Motion of the Trustee The district court held that the funds that had been deposited in the joint account at TCB were part of the bankruptcy estate. A debtor’s estate in bankruptcy consists of “all legal and equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1) (1979) (emphasis added). The extent and validity of the debtor’s interest in property is a question of state law. See In re Livingston, 804 F.2d 1219, 1221 (11th Cir.1986). Under Georgia law, “[djeposits in a bank to the credit of a debtor become property of the estate under section 541(a)(1)”, see King, 4 Collier on Bankruptcy 11541.11 at 541-71 (15th Ed.1979) (“Collier”), accord In re Williams, 61 B.R. 567, 570 (Bankr.N.D.Tex.1986), subject to the interest of any party for whose benefit the funds may be beneficially held. Collier at 541-72 & 73; Georgia Pacific Corp. v. Sigma Serv. Corp., 712 F.2d 962 (5th Cir.1983) (property held by debtor for the benefit of another would not become part of the bankruptcy estate). The legislative history of 11 U.S.C.A. § 541 makes it clear that funds in the debtor’s possession held for a third-party do not become part of the estate in bankruptcy: Situations occasionally arise where property ostensibly belonging to the debtor will actually not be property of the debtor," }, { "docid": "4727537", "title": "", "text": "119, 123 (2d Cir.1984). An admitted liability owed to a debt- or under a contract is property of the estate, even though the debtor’s subcontractors may have claims against parties to the contract. In re J.F. Naylor and Co. 67 B.R. 184, 189, modified, 67 B.R. 192 (Bankr.M.D.La.1986); see Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983). In In re J.F. Naylor and Co. the debtor was a subcontractor whose suppliers made claims against the general contractor and the property owner. 67 B.R. at 186. The Bankruptcy Court held that the entire amount owed to the debtor by the general contractor was property of the estate, notwithstanding the suppliers’ claims. Id. at 189. NYCTA admits that it owes the Debtor a minimum of $738,629 for work completed pursuant to the contract. See supra pp. 984-85. The Debtor has an equitable interest in these funds and therefore they are property of the estate. Excel and TMC base their argument that the monies owed are not property of the estate on the Supreme Court decision in Pearlman v. Reliance Insurance Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962). In Pearlman, the U.S. government withheld a percentage from its progress payments on a construction contract, with a total of $87,737 retained in a fund for payment upon satisfactory completion of the job. The contractor defaulted on the contract and filed a petition in bankruptcy. The government was forced to hire another contractor to complete the job, and the original contractor’s surety paid over $350,-000 to subcontractors and materialmen under its payment bond. Id. at 134, 83 S.Ct. at 233. The Supreme Court followed the common law rule of subrogation which gave the surety a right to be reimbursed from the retained fund, Id. at 136-137, 83 S.Ct. at 235, and held that since the surety had a property interest in the fund, the monies did not pass to the debtor’s trustee under the Bankruptcy Act. Id. at 141, 83 S.Ct. at 237. The Supreme Court decided the Pearlman case pursuant to the old Bankruptcy Act which" }, { "docid": "21591730", "title": "", "text": "hold a lien on his own property.”). . However, some of the findings necessarily made by this Court in the course of its decision in this case will be relevant upon remand. Obviously, R & R’s estate is foreclosed from making a claim upon the funds, and TCB’s claim of a right to set off or lien has been rejected. Most importantly, this Court has found that the funds placed in the registry were meant to pay R & R’s materialmen. Those materialmen or a party succeeding to their interests would appear to have a strong claim to the funds. See Pearlman v. Reliance Ins. Co., 371 U.S. 132, 136 & n. 12, 83 S.Ct. 232, 234 & 35 & n. 12, 9 L.Ed.2d 190 (1962). HATCHETT, Circuit Judge, dissenting. I would hold that the disputed funds became property of Roger & Roger’s (R & R) bankruptcy estate pursuant to 11 U.S. C.A. § 541 (West 1979 & Supp.1988). The district court, relying on Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983), held that the disputed funds belong to the estate. T & B Scottdale Contractors, Inc. v. United States, No. C-83-2253-A (N.D.Ga. May 28, 1985) at 8,10. The majority relies on Georgia Pacific Corp. v. Sigma Service Corp., but concludes that the funds do not belong to the estate. Consequently, the majority or the district court misreads the case. A. Section 541 A bankruptcy estate consists of “all legal and equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1). If the debtor holds property in trust for another, however, the property does not become part of the estate. The following example, in section 541’s legislative history and quoted by the majority, illustrates this principle. Situations occasionally arise where property ostensibly belonging to the debtor will actually not be property of the debt- or, but will be held in trust for another. For example, if the debtor has incurred medical bills that were covered by insurance, and the insurance company had sent the payment of the bills" }, { "docid": "154703", "title": "", "text": "equitable lien in favor of the bank. The equitable remedy of a constructive trust is recognized in the Nebraska common law in situations where a plaintiff can prove unjust enrichment because of a defendant’s fraud or other wrongdoing. Nebraska Nat’l Bank v. Johnson, 51 Neb. 546, 71 N.W. 294 (1897); Meier v. Geldis, 148 Neb. 304, 27 N.W.2d 215 (1947); Jordon v. Butler, 182 Neb. 626, 156 N.W.2d 778 (1968). The case law also addresses the necessity of the plaintiff’s tracing the proceeds of the wrongdoing and the existence of the good faith purchaser defense. Although the bank’s briefs do not cite any cases or treatises that comprehensively analyze the constructive trust remedy in the context of bankruptcy, there is no shortage of good authority on the subject. Schuyler v. Littlefield, 232 U.S. 704, 34 S.Ct. 466, 58 L.Ed. 806 (1914); Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924); Matter of Kennedy & Cohen, Inc., 612 F.2d 963 (5th Cir.1980); Rosenberg v. Collins, 624 F.2d 659 (5th Cir.1980); Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983); In re Shepard, 29 B.R. 928 (Bkrtcy.M.D.Fla.1983); 4 Collier on Bankruptcy ¶ 541.13 (15th ed. 1983) (and cases cited thereby). A fair reading of this authority requires a federal court to apply state law when determining questions as to rights of competing interests in property. It appears that a plaintiff seeking a constructive trust must clear at least four hurdles: (1) prove fraud or wrongdoing on the part of the defendant; (2) escape the defense of unclean hands; (3) trace the proceeds of the fraud to specific assets; and (4) escape the potential defense that the holder of the traced proceeds is a good faith purchaser. Under section 541(a) of the Bankruptcy Code, all of a debtor’s interests, both legal and equitable, become part of the bankruptcy estate. Subsection 541(d) of the Code, however, stands for the proposition that the estate acquires no greater interest in property, except through certain lien avoidance provisions contained elsewhere in the Code and not applicable here, than that possessed" }, { "docid": "10169889", "title": "", "text": "receive more than such creditor would receive if— (A) the case were under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b) (emphasis supplied). The Trustee has the burden of proving each element of a preference. In re Garris, 36 B.R. 842 (Bankr.E.D.Pa.1984); In re Schick Oil & Gas, Inc., 35 B.R. 282 (Bankr.W.D.Okla.1983). Here, the defendants dispute a key element: whether there was a transfer of property of the debtor. The defendants argue that H & A received funds from MGH in trust for the specific purpose of distributing them as required by the prime contract and was thus a mere conduit for the funds earmarked for the defendants as subcontractors. Indeed, the defendants contend that there was an express trust created by Article 9.5.2 of the prime contract’s general conditions (i.e., “The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner_”). Alternatively, the defendants contend that the principle of unjust enrichment creates a constructive trust in their favor. Pursuant to section 541 of the Bankruptcy Code, the estate succeeds only to the title and rights in property held by the debtor. Thus, where the debtor is in possession of property impressed by a trust which is valid under the Code, the estate will generally hold such property subject to the outstanding interests of the beneficiaries. 4 L. King, Collier on Bankruptcy ¶ 541.13 (15th ed. 1985). When property of the estate is alleged to be held in trust, the burden rests upon the claimant to establish the original trust relationship. In short, the defendants in this case must (1) establish title; (2) identify the trust fund or property; and (3) trace the property in the event the trust fund or property has been mingled with the general property of the debtor. Id. see also Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 969 (5th Cir.1983). Since the existence and nature of the Debtor’s interest in property" } ]

[ { "docid": "22263518", "title": "", "text": "inmate would have to pay for medical care would be if she insisted on care that the prison medical staff did not believe that she needed or if she insisted on a particular outside doctor or facility instead of the one chosen by the jail. A. The Inmate Handbook that prisoners at Lee County Jail are supposed to receive upon admission is intended to inform them of all the relevant policies and procedures at the jail. Section I, the “General” section of the Handbook, explains that “[o]ne aspect of being incarcerated is that you must follow the procedures set up for the overall operation of the facility.” Section I also contains a list of general principles designated by letter. Principles F and G read: F If a serious problem develops, do not attempt to solve it yourself. You should direct the problem to the on-duty detention officer, who is in a better position to help solve the problem. G If you need to discuss a problem with any member of the staff, a request form is provided for your use in requesting that staff member. The form should be requested from the officer on duty. (original in upper case). Subsection A of Section V, “Facility Services,” is entitled “Medical and Dental Care.” Relevant provisions include: 2. In order to be seen by the medical staff, it is necessary for you to fill out a medical request slip. These slips can be obtained from the nurse. The medical staff will pick up these medical request slips. You are to retain the pink copy. 3. In case of an emergency, you should notify the detention officer on duty. The officer will notify the medical staff and shift commander. (original in upper case). The portion of the Handbook informing inmates how to lodge a grievance is in the “Inmate Conduct and Discipline” section, and it is the only part of that section that does not deal with inmate discipline. It reads in its entirety: F. Inmate Grievance Procedure 1. A grievance is a formal complaint regarding a serious incident, policy or condition within" } ]

[ { "docid": "16161112", "title": "", "text": "and contractors, shall develop and implement reasonable criteria, policies, and procedures for prisoners to be issued appropriate medications to keep on their persons. E. Continuity of medication. The ADOC, through its agents and contractors, shall develop and implement written protocols designed to ensure that there are no lapses in medication. VIII. RECORDS AND REPORTS A. Prisoner health care records. Medical care, including dental and mental health treatment, provided to prisoners shall be accurately documented in each prisoner’s medical record. Medical records and health record policies and procedures shall comply with current NCCHC Standards. The records must include all reports received from outside hospitals and emergency rooms, current treatment plans, requests for medical attention, and responses by medical staff. Individual medical records shall be maintained on a current basis, with no more than a 7-day lag for filing new paperwork (except for current MAR’s, which must be promptly filed at the end of each month). Patients’ health care records shall be available to and used by all healthcare workers in each clinical encounter with the patient. B. Prison health care logs. The ADOC, through its agents and contractors, shall maintain current and ongoing logs tracking health care requests, all clinical encounters, complaints, grievances, and chronic care clinics, conforming with NCCHC Standards. IX. PHYSICAL PLANT A. Infirmary. The quality improvement committee (see below) shall review the capacity of the Tutwiler infirmary (including the “green rooms” or “psychiatric stabilization units”) and provide written guidelines as to types of services appropriate for infirmary care. The infirmary unit shall conform with NCCHC standards including the requirement that all infirmary patients must be within sight or sound of nursing or medical staff at all times. Physician rounds shall be conducted 5 days a week, and an RN or higher level medical provider shall be present at the infirmary each day. B. Medical isolation. Negative pressure in the medical isolation unit shall be documented daily when in use and monthly when not in use. If there is not a working room or not enough rooms at the prison facility, the ADOC shall make appropriate referral outside prison" }, { "docid": "12500536", "title": "", "text": "to file an “Inmate Informal Complaint Form.” MSJ 1 Reply at 5, (citing Grievances Policy § 150501 at 1). Further, Walden posits that his conception of Martinez’ grievance concerns the prison’s medical transport policy and asserts that, had Martinez used the grievance procedure, the New Mexico Corrections department would have been able to evaluate the policy and determine what remedy, if any, was appropriate. See MSJ 1 Reply at 6. Walden contends that Martinez is alleging that an “informal grievance” occurs every time a prisoner shouts something at prison staff-even though the New Mexico Correction’s grievance procedure does not contain this rule. MSJ 1 Reply at 6. Walden argues that, if this were the rule, prisoners would always be able to bypass the available administrative remedies through the prison system and “completely eviscerate the PLRA’s requirement for exhaustion of administrative remedies.” MSJ 1 Reply at 6, Accordingly, Walden asserts that Martinez failed to use the grievance procedure and to exhaust his administrative remedies, which means that Walden is entitled to summary judgment. See MSJ 1 Reply at 6-7. Second, Walden asserts that Martinez’ argument regarding his medical care at the Guadalupe Facility—that Walden’s reduction of Martinez’ broken ankle consti tuted assault and battery, and was not “treatment”—is counterfactual, MSJ 1 Reply at 7. Walden contends that the United States Court of Appeals for the Sixth Circuit provided the “clearest” explanation of the applicability of the PLRA’s exhaustion provision when it stated: A natural reading of the statute suggests that its application requires consideration of three simple questions. First, is plaintiff “a prisoner confined in [a] jail, prison, or other correctional facility?” If not, the statute is inapplicable. If so, a second question must be considered: Is the plaintiff suing under § 1983 respecting “prison conditions?” If not, the statute is inapplicable. If so, a third question must be considered: Did plaintiff exhaust “such administrative remedies as [were] available” before plaintiff “brought” his action? If question three is answered in the negative, plaintiff is in violation of the statute and the court is required to dismiss plaintiff’s suit. MSJ 1 Reply" }, { "docid": "7568612", "title": "", "text": "IGP supervisor to toll the 14 day limitations period on grievances for circumstances such as “referrals back to the IGP by the courts.” N.Y. Comp.Codes R. & Regs, tit 9, § 701.7(a)(1). Nevertheless, the New York Attorney General now insists that formal hearing procedures involving counsel and a transcript record are not available under the IGP and cannot reasonably be made available. The Attorney General maintained at oral argument that the remedies offered by the IGP Were forward looking and remedial only, in the sense of allowing for the discipline of malfeasant prison staff or the provision of better medical care in the future. See Tr. of Oral Arg. dated September 29, 1999, pp. 5-14. None of these limitations were noted in the defendants’ original motion to dismiss, or in the letter they sent in response to Court interrogatories on the availability of administrative remedies. Under these circumstances, I conclude that the administrative remedies offered under the IGP, as limited by the Attorney General, can serve no practical purpose with respect to plaintiffs allegations of completed and irreducible medical injuries. They do not provide for monetary relief; they are not intended to .be adjudicative in nature; they do not provide for the development of a meaningful administrative record; and they do not allow counsel to participate. Regarding past and irreducible injuries, the IGP procedures are an empty formality, and as such are not an “available” administrative remedy under the PLRA. Remand to the IGP at this point can serve no useful purpose, and this matter may thus proceed to discovery and trial. IV. Conclusions For the foregoing reasons, I conclude that there are no administrative remedies “available” for exhaustion, and that plaintiffs case may proceed to discovery and trial. If plaintiff failed to exhaust administrative remedies and that failure exacerbated the damages plaintiff claims to have suffered, or rendered the amelioration thereof impossible, defendants may raise that issue as an affirmative defense, and evidence may be taken with respect to that issue. In light of defendants’ report that there are no further remedies for plaintiff to exhaust, the stay of" }, { "docid": "12500535", "title": "", "text": "asserts that the two arguments which Martinez brought instead—that his complaint about Walden’s decision to delay transport to the hospital was informally grieved and resolved, and that the only remaining complaint against Walden is for assault and battery, a tort—lack merit. See MSJ 1 Reply at 4. Accordingly, Martinez maintains that he is entitled to summary judgment on all claims as a matter of law. See MSJ 1 Reply at 4: Fii-st, Walden asserts that “a mere difference of opinion between the prisoner/patient and prison medical authorities as to the course of treatment does not give rise to a §'1983 claim.” MSJ 1 Reply at 5 (citing Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993)(Anderson, J.)). Walden also argues that a delay in treatment is not sufficient' to establish a claim of substantial indifference. See MSJ 1 Reply at 5 (citing Olson v. Stotts, 9 F.3d at 1477). While Walden allows that the -New Mexico Correction’s grievance procedure encourages informal resolution of disputes, he asserts that the first step of the grievance procedure is to file an “Inmate Informal Complaint Form.” MSJ 1 Reply at 5, (citing Grievances Policy § 150501 at 1). Further, Walden posits that his conception of Martinez’ grievance concerns the prison’s medical transport policy and asserts that, had Martinez used the grievance procedure, the New Mexico Corrections department would have been able to evaluate the policy and determine what remedy, if any, was appropriate. See MSJ 1 Reply at 6. Walden contends that Martinez is alleging that an “informal grievance” occurs every time a prisoner shouts something at prison staff-even though the New Mexico Correction’s grievance procedure does not contain this rule. MSJ 1 Reply at 6. Walden argues that, if this were the rule, prisoners would always be able to bypass the available administrative remedies through the prison system and “completely eviscerate the PLRA’s requirement for exhaustion of administrative remedies.” MSJ 1 Reply at 6, Accordingly, Walden asserts that Martinez failed to use the grievance procedure and to exhaust his administrative remedies, which means that Walden is entitled to summary judgment. See MSJ 1" }, { "docid": "18027589", "title": "", "text": "the plaintiff in Hernandez, Plaintiff here must pursue all levels of ADOC’s administrative procedure, even if ADOC’s response was untimely. Plaintiffs claim therefore fails. Plaintiff also argues that he did not use ADOC’s grievance system because the assault did not constitute a “prison condition” under the language of 42 U.S.C. § 1997e (a). (Pl.’s Mem. Opp’n Mot. Dism. at 2.) Defendants correctly admit that § 1997e does not define “prison conditions,” but adopts the language of 18 U.S.C. § 3626g(2) (which was part of the PLRA) for a definition. Section 3626g(2) states: (2) the term “civil action with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.... 18 U.S.C. § 3626g(2). Plaintiffs action, which arises under federal law, clearly encompasses the effects of actions by government officials. Based on this definition, Plaintiffs contention that he need not exhaust his administrative remedies because the action was not a “prison condition” also fails. Plaintiff conceded in his Amended Complaint that he did not exhaust his administrative remedies. (Am. Compl. at 4.) Plaintiff could have filed a staff grievance pursuant to IMP 103.3.2.6.18 and an administrative remedy request for placement in protective segregation pursuant to IMP 304.10. Plaintiff could have filed a formal grievance with the Institutional Grievance Coordinator , followed by an appeal to the Prison Director. According to the plain language of 42 U.S.C. § 1997e(a), Plaintiffs failure to file an initial grievance or a request for administrative remedy deprives this Court of subject matter jurisdiction over this dispute. Defendants’ Motion to Dismiss will therefore be granted. The Amended Complaint will be dismissed without prejudice to refiling after Plaintiff exhausts his administrative remedies. Troxell v. McGarth, No. C 96-3812 TEH, 1996 WL 637857 (N.D.Cal.1996). Accordingly, IT IS ORDERED that Defendants’ Motion to Dismiss the Amended Complaint (Document #30) is granted without prejudice. IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss the original Complaint (Document # 19) is denied as moot. . Section 1997e(a) states:" }, { "docid": "16161113", "title": "", "text": "B. Prison health care logs. The ADOC, through its agents and contractors, shall maintain current and ongoing logs tracking health care requests, all clinical encounters, complaints, grievances, and chronic care clinics, conforming with NCCHC Standards. IX. PHYSICAL PLANT A. Infirmary. The quality improvement committee (see below) shall review the capacity of the Tutwiler infirmary (including the “green rooms” or “psychiatric stabilization units”) and provide written guidelines as to types of services appropriate for infirmary care. The infirmary unit shall conform with NCCHC standards including the requirement that all infirmary patients must be within sight or sound of nursing or medical staff at all times. Physician rounds shall be conducted 5 days a week, and an RN or higher level medical provider shall be present at the infirmary each day. B. Medical isolation. Negative pressure in the medical isolation unit shall be documented daily when in use and monthly when not in use. If there is not a working room or not enough rooms at the prison facility, the ADOC shall make appropriate referral outside prison facility for respiratory isolation. C. Heat and shade. Defendants shall develop and implement a heat plan that includes policies and procedures ensuring-sufficient means of cooling and hydration for heat-sensitive individuals to prevent dehydration, heat exhaustion, heat stroke, and other adverse consequences of heat. D. Sanitation. All areas housing or temporarily holding prisoners with illnesses, or where prisoners receive medical care or testing, shall be thoroughly cleaned on at least a daily basis or more often if necessary, shall be disinfected between placements, and shall be kept in good physical condition. E. Medical examination rooms. An adequate number of clinical examination rooms shall be provided, containing an examination table and hand washing facilities to ensure private examinations. F. Equipment. The ADOC shall provide at Tutwiler prison appropriate and operative equipment, such as automatic defibrillators, to respond to medical emergencies. Staff shall be properly trained to use such equipment. If dialysis is conducted on-site, staff shall be trained in proper methods, and appropriate equip ment and space shall be available to perform dialysis. Prisoners who enter prison" }, { "docid": "16207809", "title": "", "text": "§ 1983 claim against Dr. Smith. By filing his November grievance, Mr. Barnes restarted the grievance process. Contrary to Dr. Smith’s suggestion, moreover, Mr. Barnes did not abandon this claim by not naming Dr. Smith specifically in the latter grievance. At the time Mr. Barnes filed that grievance, the Illinois Administrative Code did not require prisoners to name the individual against whom they filed grievances or to assert specific claims against any person. See Ill. Admin. Code tit. 20 § 504.810(b). Furthermore, the November grievance broadly stated that it was “being submitted in regards to a request for [sic] for medical test and treatment. I have requested several times to be tested for Tuberculosis, H.I.V., Hepatitis, etc. for the past few years.” R.53, Ex.C at 1. When we draw all reasonable inferences in favor of the plaintiff, this language does not indicate, as Dr. Smith submits, that his name was “intentionally omitted from” that grievance. Appellee Br. of Dr. Smith at 13. Rather, the language encompasses the alleged past failure of Dr. Smith to respond to Mr. Barnes’ request for a hepatitis test and treatment. Therefore, Mr. Barnes may pursue his § 1983 claims against Dr. Smith in federal court. E. Failure to State a Claim As a final matter, defendants Michael KroliMewicz, Officer Schonaur and Officer Ruffin submit that Mr. Barnes’ allegation that they had displayed deliberate indifference to his medical needs should be dismissed on its merits because they played no role in his medical care. This submission is premature because the district court did not reach the merits of Mr. Barnes’ suit. Such a merits inquiry should be addressed by the trial court in the first instance. Conclusion For the foregoing reasons, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion. ReveRsed and Remanded. . The director of Stateville issued a final decision on December 5, 2003, denying Mr. Barnes’ grievance. See infra note 2. . The defendants submit that Mr. Barnes failed to exhaust the prison grievance system related to his present § 1983 claims before amending" }, { "docid": "7568574", "title": "", "text": "claim concerning defendants’ deliberate indifference to his medical needs is an action “with respect to prison conditions;” both because the natural reading of that phrase includes such claims and because such allegations concern “the effects of actions by govern ment officials on the lives of persons confined in prison[.]” 18 U.S.C. § 3626(g)(2). Accordingly, I hold that plaintiffs claim that doctors and guards mistreated him and ignored his calls for help is governed by the exhaustion requirement of section 1997e(a). V. Section 1997e(a) Applies to Actions for Monetary Damages Plaintiff argues that because monetary damages — the remedy he seeks herein— are not “available” to him in the administrative proceedings at Green Haven, section 1997e(a) should not apply. I hold, however, that the exhaustion requirement of section 1997e(a) remains applicable. A. The Administrative Grievance Procedures Available to Plaintiff New York provides an elaborate administrative grievance process for prisoners in New York State correctional facilities. See Inmate Grievance Program (“IGP”), N.Y.Comp.Codes R. & Regs, tit. 7, §§ 701.1-701.16 (1995). The program is designed to provide inmates with an “orderly, fair, simple and expeditious method of resolving grievances....” Id. § 701.1(a). A “grievance” is broadly defined: “A complaint about the substance or application of any written or unwritten policy, regulation, procedure or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation, procedure or rule.” Id. § 701.2(a). Each prison maintains an Inmate Grievance Resolution Committee (“IGRC”), which is required “to resolve grievances or make recommendations for the resolution of the grievances filed.” Id. § 701.7(a). It consists of five members: two voting inmates, two voting staff members, and a non-voting chairperson. Id. § 701.4(a). Grievances are to be submitted to the IGRC within 14 days of the alleged occurrence, with exceptions “based on mitigating circumstances.” Id. § 701.7(a)(1). For example, the 14-day limitation is not applicable to “referrals back to the IGP by the courts.” Id. The grievance is to be alleged by a “concise, specific description of the problem and the action requested and [an indication of] what actions the" }, { "docid": "11613655", "title": "", "text": "a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Because I find that plaintiff has failed to exhaust his administrative remedies, his complaint is dismissed without prejudice. DISCUSSION As stated, the PLRA requires that an inmate-plaintiff must exhaust his available administrative remedies before commencing a lawsuit in federal court with respect to prison conditions. In New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee (“IGRC”), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC’s determination; and (3) if the superintendent’s decision is appealed, the Central Office Review Committee (“CORC”) makes the final administrative determination. See 7 N.Y.C.R.R..§ 701.7. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court. See, e.g., Sutton v. Greiner, No. 00 Civ. 0727(RWS), 2000 WL 1809284, at *3 (S.D.N.Y. Dec.11, 2000); Petit v. Bender, No. 99 Civ. 0969(SHS), 2000 WL 303280, at *2-3 (S.D.N.Y. Mar.22, 2000). Here, the complaint alleges that plaintiff “did follow the grievance Resolution Committie [sic] at the administrated level concerning he’s [sic] medical problems.” Complaint 1iIV-B. It also states, “No intents [sic] to results the claimant’s medical complaint by the inmates grievance procedures at the administrated level,” Complaint 1ÍIV-C, but it is unclear what that statement is intended to mean. Defendant contends that plaintiff has not exhausted his administrative remedies. In support of that assertion, defendant has submitted an affidavit of Thomas G. Eagen, the Director of the DOCS Inmate Grievance Program. He states that he has caused a search to be made of the records regarding plaintiff, and that this search uncovered no record or indication that plaintiff filed with CORC any appeals of any grievances concerning his HIV- or AIDS-related medical care. Docket # 16, ¶ 5. In response to defendant’s answer to the complaint, plaintiff has submitted what he states is a copy of" }, { "docid": "22413392", "title": "", "text": "exactly what conduct Ross intends to serve as the basis of his Eighth Amendment inadequate medical treatment claims. In his complaint, Ross articulates a laundry list of problems he encountered in seeking to obtain appropriate medical treatment from the time of his injury on November 29, 1999, to July 2000. At a minimum, it seems clear that Ross is seeking relief for more than the fact that his shoulder was not treated between November 29 and December 1, 1999. His Eighth Amendment claims involve numerous incidents that took place after December 1 in which he alleges that prison officials were deliberately indifferent to his medical needs. None of those post-December 1 incidents were brought to the attention of prison officials through any grievance process. The record is devoid of evidence that Ross made any use of the MCDC grievance procedures to complain of inadequate medical care after December l. Moreover, Ross concedes that he did not invoke the BCDC grievance process while incarcerated there. A grievance obviously cannot exhaust administrative remedies for claims based on events that have not yet occurred. Nor does a grievance exhaust administrative remedies for all future complaints of the same general type. Ross’ December 1 grievance did nothing to alert prison officials to any inadequate treatment that might take place in the future. Consequently, it did not further the purposes of the PLRA’s exhaustion requirement — allowing prisons to address specific complaints internally to obviate the need for litigation, filtering out frivolous claims, and creating a useful administrative record — as to the inadequate medical treatment claims Ross now pursues in federal court. We therefore conclude that the administrative remedies available to Ross for his claims alleging inadequate medical treatment from November 30, 1999, to July 2000 were not exhausted, and that these claims are barred by the PLRA. TV. Total Exhaustion Finally, we turn to whether Ross’ entire action should be dismissed under the PLRA because he failed to exhaust available administrative remedies as to his medical treatment claims. The only Court of Appeals to have addressed this “total exhaustion” issue in a published" }, { "docid": "12544632", "title": "", "text": "exhaust those administrative remedies that are not actually made available to them, such was not the case here. The defendants have produced evidence demonstrating that CMS has put in place informal and formal grievance procedures at both of the facilities where members of the plaintiff class are incarcerated, and that inmates do routinely receive notice of the availability of such procedures. Every inmate receives a memo entitled “Access to Health Care Services” at his or her orientation with the facility’s health care personnel. This memo clearly describes where inmates may obtain forms for filing both informal complaints and formal grievances, and to whom the completed forms should be returned. CMS also has in place a comprehensive system of tracking and addressing inmate complaints and grievances. This system has been in place since 1995, which was before all of the named plaintiffs entered Alabama’s correctional system. In addition to the grievance mechanism provided by CMS, the DOC inmate orientation manual describes its own inmate complaint procedure, which is available to address all types of inmate concerns, including but not limited to complaints in the area of medical care. This manual is given to inmates at their general orientation to the facility, and is also kept for inmates’ use at the law library. The plaintiffs have filed affidavits indicating that they personally were not informed and did not know that grievance procedures were in place to redress their complaints. However, they have not produced any evidence that effectively rebuts the defendants’ evidence; the plaintiffs have failed to produce evidence, or even argue, that the grievance procedures and the mechanism for disseminating information to inmates about such procedures, were not in place on a system-wide basis. Absent such evidence, the court concludes that grievance procedures were “available” as defined under § 1997e(a) of the PLRA, and that the plaintiffs must exhaust these administrative remedies before bringing this lawsuit in federal court. In so doing, the court does not reach the question of whether administrative remedies would be “available” within the meaning of the PLRA in a case where the plaintiffs did provide evidence" }, { "docid": "12203359", "title": "", "text": "from Jail medical staff, Daniel has offered evidence that the Jail’s grievance system was not reliable or timely. But the Constitution does not require that jails or prisons provide a grievance procedure at all, nor does the existence of a grievance procedure create a constitutionally guaranteed right. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d 763, 772-73 (7th Cir. 2008). The right at issue is instead a right to constitutionally adequate care. This does not mean that problems in the grievance system are not relevant to Daniel’s core claim that he was deprived of medical care by an official custom, policy, or practice. A jail or prison must have effective channels for inmates to communicate .their health care needs. Thomas, 604 F.3d at 304 (“The dangers of delayed responses to medical requests are readily apparent....”). If those channels break down, the result may be a depriva tion of needed care. If a grievance system is part of a jail’s or prison’s system for communicating and responding to health care requests, and if the system fails in a way that causes a deprivation of needed health care, then the problem with the grievance system may be an important part of the plaintiffs case for deliberate indifference to his health care needs. See, e.g., Await v. Marketti, 74 F.Supp.3d 909, 936 (N.D. Ill. 2014) (denying government’s motion for summary judgment for deprivation of health care resulting in death where plaintiff offered evidence that Cook County Jail personnel routinely ignored medical grievances). Accordingly, delays in responses to Daniel’s grievances do not support an independent constitutional claim, but those delays may support Daniel’s other evidence that systemic problems at the Jail caused him to suffer injury as a result of official indifference. The evidence that such delays occurred further bolsters Daniel’s general claim of inadequate medical treatment. B. Proper Defendants Daniel’s suit names as defendants the Cook County Sheriffs Office, Cook County Sheriff Dart in his individual capacity, and Cook County itself. The Sheriffs Office argues that it cannot be liable for Daniel’s injuries because it was" }, { "docid": "23217463", "title": "", "text": "will affirm the dismissal of Doe’s complaint. I. FACTS John Doe arrived at SCIP on January 11, 1995. Shortly thereafter, Doe was informed by the medical staff that he was HIV-positive. After signing a written consent of disclosure form, he was told that his medical condition would be kept confidential and that medical records relating to his illness would be maintained separately from his general prison file. Because of certain procedures permitted by defendants, Doe’s condition was not kept confidential. Specifically, when Doe was taken for sick call appointments, staff informed the escorting officers of Doe’s medical condition. During physician visits, staff kept the door to the clinic room open, allowing officers, inmates, and guards in the area to see and hear Doe and the treating physician. Finally, while administering medication, nurses announced his medication loudly enough for others to hear, allowing inmates to infer Doe’s condition. Doe filed administrative grievances concerning the sick call and medication distribution practices, but the grievances did not bring about any change in the practices. On July 11, 1997, Doe, proceeding pro se, filed suit under 42 U.S.C. § 1983 and the Pennsylvania Confidentiality of HIV Related Information Act, 35 P.S. § 7601 et seq. in the United States District Court for the Western District of Pennsylvania. The complaint named as defendants Joan Delie, Health Care Administrator at SCIP; Dr. Paul Noel, Medical Director of SCIP; Diane Manson, a Nurse/Grievance Officer; and Sophie Swika and Kim Zimmerman, both nurses at SCIP. Doe claimed his constitutional right to privacy was violated by the “open-door” examination room policy, by the disclosure of his medical condition to corrections officer escorts, and by the loud announcement of the names of his medications. He alleged that these practices made him reluctant to discuss embarrassing symptoms with doctors, subjected him to psychological harassment and humiliation, and caused him to discontinue treatment. Doe requested declaratory and injunctive relief, as well as nominal, compensatory, and punitive damages. On August 5,1997, Doe filed motions for a temporary restraining order and a preliminary injunction ordering defendants to provide for nondisclosure of his medical information" }, { "docid": "12544633", "title": "", "text": "including but not limited to complaints in the area of medical care. This manual is given to inmates at their general orientation to the facility, and is also kept for inmates’ use at the law library. The plaintiffs have filed affidavits indicating that they personally were not informed and did not know that grievance procedures were in place to redress their complaints. However, they have not produced any evidence that effectively rebuts the defendants’ evidence; the plaintiffs have failed to produce evidence, or even argue, that the grievance procedures and the mechanism for disseminating information to inmates about such procedures, were not in place on a system-wide basis. Absent such evidence, the court concludes that grievance procedures were “available” as defined under § 1997e(a) of the PLRA, and that the plaintiffs must exhaust these administrative remedies before bringing this lawsuit in federal court. In so doing, the court does not reach the question of whether administrative remedies would be “available” within the meaning of the PLRA in a case where the plaintiffs did provide evidence that the responsible correctional entity had failed on a system-wide basis, or otherwise in some substantial measure or significant way, to inform inmates about its grievance procedures. The plaintiffs also suggest that they should not be required to exhaust administrative remedies, because such remedies were ineffective or inadequate. They point out in their supplemental response, for example, that the defendants have offered no evidence indicating their procedures ensure that inmate grievances are “appropriately addressed and resolved.” The Eleventh Circuit has definitively stated, however, that the efficiency or adequacy of a defendant’s grievance procedures has no bearing on whether such procedures are “available,” or whether § 1997e(a) therefore requires plaintiffs to exhaust such procedures before filing suit in federal court. See Alexander, 159 F.3d at 1326 (“[T]he term ‘administrative remedies as are available’ does not mean an adequate administrative remedy.”) Re gardless of their chances of success using the defendants’ grievance procedures, the PLRA requires the plaintiffs to exhaust them. Therefore, the court will dismiss the plaintiffs’ eighth-amendment claim without prejudice, so that they may pursue" }, { "docid": "11613656", "title": "", "text": "at *3 (S.D.N.Y. Dec.11, 2000); Petit v. Bender, No. 99 Civ. 0969(SHS), 2000 WL 303280, at *2-3 (S.D.N.Y. Mar.22, 2000). Here, the complaint alleges that plaintiff “did follow the grievance Resolution Committie [sic] at the administrated level concerning he’s [sic] medical problems.” Complaint 1iIV-B. It also states, “No intents [sic] to results the claimant’s medical complaint by the inmates grievance procedures at the administrated level,” Complaint 1ÍIV-C, but it is unclear what that statement is intended to mean. Defendant contends that plaintiff has not exhausted his administrative remedies. In support of that assertion, defendant has submitted an affidavit of Thomas G. Eagen, the Director of the DOCS Inmate Grievance Program. He states that he has caused a search to be made of the records regarding plaintiff, and that this search uncovered no record or indication that plaintiff filed with CORC any appeals of any grievances concerning his HIV- or AIDS-related medical care. Docket # 16, ¶ 5. In response to defendant’s answer to the complaint, plaintiff has submitted what he states is a copy of the grievance that he filed with the IGRC. Docket # 21, Ex. A. In it, he complains that he has not received treatment, and states that he “want[s][his] treatment the way that is suppouse [sic] to be and not as they want, leaving [plaintiff] without of [sic] medications.” Plaintiff, however, has failed to show that he ever went beyond the mere filing of a grievance in accordance with the three-step process outlined above. Although plaintiffs response to defendant's assertion that he failed to exhaust adminis trative remedies is not altogether clear, plaintiff does not contradict defendant’s contention that plaintiff did not pursue all steps of the grievance process. Plaintiff also makes no contention that he did pursue his grievance to CORC. Plaintiff argues in his memorandum of law that he did exhaust administrative remedies, but, for the most part, plaintiff goes on only to discuss general legal principles, which he does not attempt to relate to the facts of this case. I recognize that as a pro se, litigant, plaintiff is entitled to have his" }, { "docid": "18027588", "title": "", "text": "that Plaintiff was aware of ADOC’s exhaustion requirement, it will not grant 30 days to further amend the Amended Complaint. Plaintiff, however, argues that he could not exhaust ADOC’s grievance system because he had to wait for a response before he could file a formal grievance. (Pl.’s Mem. Opp’n Mot. Dism. at 1.) In Hernandez v. Steward, No. 96-3222-SAC, 1996 WL 707015 (D.Kan.1996), the District Court of Kansas dismissed an action for failure to exhaust the administrative remedies of the correctional facility. The court stated: “The plaintiffs explanation of the steps he took towards exhaustion shows his efforts were incomplete .... As for his excuse that ‘they never’ replied, the plaintiff was still obligated .to pursue all levels of the administrative scheme.” Id. at *2. Similarly, Plaintiff claims that he could not file a formal grievance due to ADOC’s untimely response. IMP 103.3.2.6.14.3 provides, “Expiration of the time limit at any level in the process shall entitle the inmate to proceed to the next level unless the inmate agrees in writing to an extension.” Like the plaintiff in Hernandez, Plaintiff here must pursue all levels of ADOC’s administrative procedure, even if ADOC’s response was untimely. Plaintiffs claim therefore fails. Plaintiff also argues that he did not use ADOC’s grievance system because the assault did not constitute a “prison condition” under the language of 42 U.S.C. § 1997e (a). (Pl.’s Mem. Opp’n Mot. Dism. at 2.) Defendants correctly admit that § 1997e does not define “prison conditions,” but adopts the language of 18 U.S.C. § 3626g(2) (which was part of the PLRA) for a definition. Section 3626g(2) states: (2) the term “civil action with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.... 18 U.S.C. § 3626g(2). Plaintiffs action, which arises under federal law, clearly encompasses the effects of actions by government officials. Based on this definition, Plaintiffs contention that he need not exhaust his administrative remedies because the action was not a “prison condition”" }, { "docid": "14127939", "title": "", "text": "complied with the administrative remedy scheme. On February 25, 2000, Plaintiff filed Grievance No. GRA-0232-2000 and thereafter appealed the denials of that grievance at the second and third stages of the administrative scheme. Prison Defendants do not dispute that Plaintiff properly exhausted his administrative remedies for the claims in this grievance. They contend, however, that Plaintiff only addressed his medical claims in this grievance and failed to exhaust with respect to his dangerous working conditions claim. The text of Plaintiffs initial grievance specifically refers to the water leak in the typing area, the alleged danger the leak posed, and the injury Plaintiff suffered when attempting to repair the leak. (Compl. at Ex. C). Plaintiff also refers in his grievance to his previous written requests to have the leak fixed. (Id.). Likewise, at each appeal stage, Plaintiff again refers to the failure of prison officials to remedy the unsafe working conditions in the typing area, despite their acknowledgment of a problem. (Id. at Ex. F & H). While Plaintiffs grievance may have been more specific regarding his medical claims, it is evident that he was also grieving the dangerous conditions in the typing area. Based on that finding, we conclude that Plaintiff has substantially complied with the administrative scheme available to him. Accordingly, we reject Prison Defendants failure to exhaust argument. 2. Medical Care Claims against Vaughn and Knauer Next, Prison Defendants argue that Plaintiff cannot maintain his medical care claims against Vaughn and Knauer because neither official was a medical doctor or involved in Plaintiffs medical care. We agree. Prison authorities “who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Miller, No. CIV.A. 97-7987, 1999 WL 415397, at *11 (citing Durmer v. O’Carroll, 991 F.2d 64, 69 n. 14 (3d Cir.1993)). Similarly, health care administrators cannot be found deliberately indifferent when an inmate is receiving care from a doctor. See, e.g., id.; Hull v. Dotter, No. CIV.A. 96-3087, 1997 WL 327551, at *4 (E.D.Pa. June 12, 1997);" }, { "docid": "18027587", "title": "", "text": "v. United States, 966 F.2d 517, 519 (9th Cir.1992) (stating that the exhaustion requirement of Federal Tort Claims Act is jurisdictional and may not be waived). In Eakins v. Madrid, No. C 96-2229 SI, 1996 WL 743812 (N.D.Cal.1996), the defendants filed a motion to dismiss on the ground that the plaintiff failed to exhaust administrative remedies. The court, unaware of the plaintiffs knowledge of the exhaustion requirement, gave the plaintiff 30 days to amend his complaint. Instead of granting him an extended opportunity to exhaust, the court allowed the plaintiff 30 days for the limited purpose of proving that he did exhaust his remedies. The court stated: “Plaintiff must allege facts in his amended complaint to show that he filed administrative grievances in prison and appeals at every allowable level for each incident of wrongful conduct alleged in the complaint.” Id. at *1. In the instant case, Plaintiffs Amended Complaint illustrates that he failed to proceed with ADOC’s grievance system. (Am. Compl. at 4.) Pursuant to the logic of Eakins, because this Court is certain that Plaintiff was aware of ADOC’s exhaustion requirement, it will not grant 30 days to further amend the Amended Complaint. Plaintiff, however, argues that he could not exhaust ADOC’s grievance system because he had to wait for a response before he could file a formal grievance. (Pl.’s Mem. Opp’n Mot. Dism. at 1.) In Hernandez v. Steward, No. 96-3222-SAC, 1996 WL 707015 (D.Kan.1996), the District Court of Kansas dismissed an action for failure to exhaust the administrative remedies of the correctional facility. The court stated: “The plaintiffs explanation of the steps he took towards exhaustion shows his efforts were incomplete .... As for his excuse that ‘they never’ replied, the plaintiff was still obligated .to pursue all levels of the administrative scheme.” Id. at *2. Similarly, Plaintiff claims that he could not file a formal grievance due to ADOC’s untimely response. IMP 103.3.2.6.14.3 provides, “Expiration of the time limit at any level in the process shall entitle the inmate to proceed to the next level unless the inmate agrees in writing to an extension.” Like" }, { "docid": "22113243", "title": "", "text": "Halal. Meat that is not Halal is referred to as Haram and is forbidden. . In February 2000, Shakur filed an overlapping Inmate Grievance raising other religious issues, including the lack of a religious exemption from ADOC’s requirement that inmates remain clean shaven. Although Sha-kur had received a limited medical waiver from the shaving requirement several years earlier, the waiver did not permit him to grow a beard of more than a quarter inch in length. Shakur contends that the limited waiver conflicts with his religious faith, which requires that his beard remain unshaven. ADOC denied his grievance and his appeals, finding that a shaving waiver was not required for the practice of his religion. .Dora B. Schriro has replaced Terry Stewart as Director of ADOC. The other defendants named in the complaint who remain part of this case are Grant, Linderman and Naraine. They are referred herein collectively as . \"ADOC.” . In Count III, Shakur alleged a violation of his First Amendment rights in the denial of his request for a religious exemption for shaving “due to religious belief and practice.” . The district court did not address Shakur’s shaving claim, ruling that “this claim was not stated in the second amended complaint” and was thus waived. . Shakur admitted in his statement of facts supporting his opposition to the summary judgment motion: \"Plaintiff agrees with the defendant that a vegetarian diet would be an acceptable alternative for Muslims....” . It is also unclear from the record whether the $1.5 million figure provided by Linder-man as the cost of providing all 850 Muslim inmates with kosher TV dinners \"(850 Muslim inmates x $5.00 per day x 365 days per year)” accounts for whether these inmates are currently receiving regular meals, lacto vegetarian meals, or ovo-lacto vegetarian meals, which presumably have different costs. Further, as noted above at page 1025, ADOC has provided no evidence that all 850 Muslims would even request a kosher TV dinner were it made available to them. . The district court’s reliance on 'Williams is unavailing. In Williams, Muslim prisoners alleged that the prison" }, { "docid": "18027582", "title": "", "text": "Id. at 7. However, ADOC officials refused to move Plaintiff or the other inmate. That same day, Plaintiff filed his first Inmate Letter requesting physical protection and was later assaulted by Sanchez. Plaintiff asserts that Lieutenant Mariotti told him that ADOC officials had received the Inmate Letter requesting protection, but that Plaintiffs request was refused. Id. at 9. ADOC officials proceeded to place two other successive inmates into Plaintiffs cell. Id. Upon the arrival of his third cellmate, Plaintiff attempted to cut his wrist with a razor blade. Id. Plaintiff had filed three Inmate Letters dated May 23rd, 30th, and June 3rd requesting that the prison staff protect him from other inmates by the time he filed his Complaint. Id. Although ADOC’s Internal Management Policy (“IMP”) 103.3.2.6.9.2 states that the CPO shall “[pjrovide a response to the inmate, on an Inmate Letter Response Form ... within ten workdays of receipt of the complaint,” Plaintiff claims that he did not receive a reply to his requests until June 17,1996. (Compl. at 10.) Plaintiff admits in his Complaint that he did not continue to seek relief through the grievance procedure of his institution. Id. at 4. He refused to follow ADOC’s grievance system because it would allegedly provide no “resolution” to the assault. Id. Furthermore, Plaintiff claims that the assault cannot be construed as a “prison condition.” (Pl.’s Mem. Opp’n Mot. Dism. at 2.) Plaintiff argues that ADOC officials deliberately failed to ensure his safety after other inmates displayed a strong response to Plaintiffs homosexual and child molester status. (Compl. at 5.) Plaintiff seeks protective custody, $25,000 in compensatory damages, $50,000 in punitive damages, and $50,000 for negligence and deliberate indifference. Id. at 6. On July 31, 1996, this Court dismissed the following Defendants from the case without prejudice: (1) ADOC; (2) Herman; (3) Stewart; (4) Willis; (5) Alexander; and (6) Garvin. On September 23, 1996, the remaining Defendants, Mariotti, Connor, Melcher, Ingram, Herzog, and Lester, moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Defendants asserted that under this" } ]

[ { "docid": "23210556", "title": "", "text": "aspirin, heparin, possibly nitroglycerin, oxygen and a statin”; and that, therefore, “this was a preventable death.” Id. II We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court. Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir.2007). Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.CivJP. 56(c). “[W]e review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions.” Medina v. Cram, 252 F.3d 1124,1128 (10th Cir.2001). When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established. Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In Pearson, the Supreme Court held that the court has discretion to determine “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818. In this case, because defendants did not violate Ginn’s constitutional rights, we need not address whether those rights were clearly established. Under the Fourteenth Amendment due process clause, “pretrial detainees are ... entitled to the degree of protection against denial of medical attention which applies to convicted inmates” under the Eighth Amendment. Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir.1985). A claim for inadequate medical attention will be successful if the plaintiff shows “ ‘deliberate indifference to serious medical needs.’ ” Estate of Rocker v. Walsh, 22 F.3d 995, 998 (10th Cir.1994) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The Supreme Court cautioned that “an inadvertent failure to provide adequate medical care” does not rise to a constitutional violation." } ]

[ { "docid": "17922522", "title": "", "text": "B. Qualified Immunity Analysis: Alleged Impact Blows Qualified immunity is an affirmative defense that “shield[s] an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law.” Pearson v. Callahan, 555 U.S. 228, 244, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine “protects government officials ’from liability for civil damages insofar as their conduct does not violate clearly established.statutory or constitutional rights of which a reasonable person would have known.’” Id. at 281, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Further, it “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. “The protection of qualified immunity applies regardless of whether the government official’s error is ’a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Id. Because qualified immunity is an affirmative defense, the defendant bears the burden of establishing entitlement to it. Gomez, 446 U.S. at 640, 100 S.Ct. 1920. The burden shifts to Plaintiffs to prove “that the right allegedly violated was clearly established at the time of the official’s allegedly impermissible conduct.” Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir.1993). To determine whether officers are entitled to qualified immunity is a two-step inquiry. “The threshold inquiry in a qualified immunity analysis is whether the plaintiffs allegations, if true, establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir.2003) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If the alleged conduct would not be considered violative, the inquiry stops and the defense of qualified immunity applies. See id. “Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ’clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 231, 129 S.Ct. 808. To be a clearly established constitutional right," }, { "docid": "997308", "title": "", "text": "public official presents an “abstract issue of law[,]” such as “whether the right at issue is clearly established or whether the district court correctly decided a question of law[.]” Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014) (citations omitted). We review a district court’s qualified immunity determination de novo. D.Z. v. Buell, 796 F.3d 749, 753 (7th Cir. 2015) (citation omitted). B. Qualified Immunity Framework “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, — U.S. —, 136 S.Ct 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Qualified immu nity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officers from harassment, distraction, and liability when they perform their duties reasonably. ” Pearson, 555 U.S. at 231, 129 S.Ct. 808. “The defense provides ‘ample room for mistaken judgments’ and protects all but the ‘plainly incompetent and those who knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). To overcome a defendant’s invocation of qualified immunity, a plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “If either inquiry is answered in the negative, the defendant official is entitled to summary. judgment.” Gibbs, 755 F.3d at 537. Courts are free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. Because the answer to this inquiry is dispositive, we address only whether" }, { "docid": "19902685", "title": "", "text": "STANDARD OF REVIEW We review a district court’s denial of summary judgment de novo, viewing all evidence and drawing all reasonable inferences in favor of the non-moving party. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002). Summary judgment is appropriately granted if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.2008). V. DISCUSSION Qualified immunity shelters government officials performing discretionary functions from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citation omitted). The doctrine “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). “Qualified immunity is ‘an immunity from suit rather than a mere defense to liability Scott v. Harris, 550 U.S. 372, 376 n. 2, 127 S.Ct. 1769, 1773 n. 2, 167 L.Ed.2d 686 (2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis omitted)). The standard for qualified immunity is well established. First, the government official must show that he was engaged in a “discretionary function” when he committed the allegedly unlawful acts. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263-64 (11th Cir.2004). If the official acted within his discretionary authority, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194 (citation omitted). The plaintiff must satisfy the two-prong test prescribed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); he must show: (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the violation. 533 U.S. at 201," }, { "docid": "21963605", "title": "", "text": "quotation marks omitted) (quoting Griggs, 841 F.3d at 312). But “a plaintiffs version of the facts should not be accepted for purposes of qualified immunity when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.” Id. at 744 (quoting Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir. 2015)). “A qualified immunity defense alters the usual summary judgment burden of proof. Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated clearly established law.” Id. (citation and internal quotation marks omitted) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). B. Analysis On appeal, Trammel argues that the district court erred in granting summary judgment: (1) in favor of Officers Fruge, Garza, Neveu, and Ingles on the basis of qualified immunity with respect to his excessive force and failure-to-intervene claims; and (2) in favor of Round Rock on his municipal liability claims. We address each argument in turn. 1. Officers Fruge, Garza, Ingles, and Neveu Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether qualified immunity applies, a court engages in a two-part inquiry asking: first, whether “[tjaken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right”; and second, “whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Although the Supreme Court has recognized considering these two questions in order “should not be regarded as mandatory in all cases ... it is often beneficial.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In order for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that q reasonable official" }, { "docid": "22477285", "title": "", "text": "86 L.Ed.2d 411 (1985)), modified by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. In the present case, the district court granted Fried and Castar immunity. Having determined that neither instance of Nagle’s expressive conduct was protected, and certainly was not “clearly” so, the court necessarily concluded that a reasonable official would not have been on notice that “considering such conduct in reaching an adverse employment decision violated” Nagle’s rights. Order at 22. Because we hold that one of Nagle’s acts of expressive conduct was protected, we must revisit the district court’s decision on qualified immunity. We conclude that neither Fried nor Castar have such immunity. Qualified immunity depends on whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the [official’s] conduct violated a ... right,” and, if so, whether that right was “clearly established” at the time of the events at issue. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. As indicated previously, we have no difficulty in concluding that, taking Nagle’s allegations as true and resolving all ambiguities and drawing all inferences in her favor, the facts she alleges, if proved, constituted a violation of her right not to experience an adverse employment action in retaliation for speaking as a private person on a matter of public concern. We therefore turn to the other prong of the test. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [official] that his conduct" }, { "docid": "16941262", "title": "", "text": "doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ’’Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). In order to overcome a qualified immunity defense, a plaintiff must allege a violation of a constitutional right, and then must show that “the right was clearly established ... in light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson, 555 U.S. 223, 129 S.Ct. 808. Courts may address these two elements in either order, and need not proceed to the second where the first is resolved in the negative. See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 409-10 (5th Cir.2009) (citing Pearson, 555 U.S. at 231, 129 S.Ct. 808). A. The district court correctly concluded that the Thompsons have not alleged a constitutional violation. A plaintiff does not overcome qualified immunity by merely alleging “that a violation arguably occurred.” Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1212 (5th Cir.1989) (emphasis original). “Rather, the court must be certain that if the facts alleged by plaintiff are true, notwithstanding any credibility disputes with defendants, then a violation has clearly occurred.” Ibid. (emphasis original). Here, even construing the facts in the Thomp-sons’ favor, there was no Fourth Amendment violation. The Fourth Amendment guarantees the right to be free from “unreasonable searches and seizures.” U.S. Const. amend. IV. It is undisputed that the apprehension of Keith Thompson by deadly force was a seizure. Therefore," }, { "docid": "2383212", "title": "", "text": "would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted); accord Messerschmidt v. Millender, — U.S. -, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officers from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It gives public officials “breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)); see also Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (“The general rule of qualified immunity is intended to provide government officials with the ability ‘reasonably to anticipate when their conduct may give rise to liability for damages.’ ” (brackets and citation omitted)). To overcome the defendant’s invocation of qualified immunity, the plaintiffs must show both (1) that the facts make out a constitutional violation, and (2) that the constitutional right was “clearly established” at the time of the official’s alleged misconduct. E.g., al-Kidd, 131 S.Ct. at 2080; Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir.2008). Though once required to determine whether a violation occurred before determining whether the right was clearly established, see Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), courts now have discretion to grant immunity on the basis that the right was not clearly established without determining whether there was a violation in the first place, see Pearson, 555 U.S. at 227, 129 S.Ct. 808, abrogating Saucier, 533 U.S. at 200-01, 121 S.Ct. 2151. A We begin with the Abbotts’ false-arrest and false-imprisonment claims. The existence of probable cause to arrest is an absolute defense to any §" }, { "docid": "19628190", "title": "", "text": "that Mullenix was not entitled to qualified immunity because \"the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment.\" Id., at 725. We address only the qualified immunity question, not whether there was a Fourth Amendment violation in the first place, and now reverse. The doctrine of qualified immunity shields officials from civil liability so long as their conduct \" 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). A clearly established right is one that is \"sufficiently clear that every reasonable official would have understood that what he is doing violates that right.\" Reichle v. Howards, 566 U.S. ----, ----, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and alteration omitted). \"We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.\" Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Put simply, qualified immunity protects \"all but the plainly incompetent or those who knowingly violate the law.\" Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). \"We have repeatedly told courts ... not to define clearly established law at a high level of generality.\" al-Kidd, supra, at 742, 131 S.Ct. 2074. The dispositive question is \"whether the violative nature of particular conduct is clearly established.\" Ibid. (emphasis added). This inquiry \" 'must be undertaken in light of the specific context of the case, not as a broad general proposition.' \" Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). Such specificity is especially important in the Fourth Amendment context, where the" }, { "docid": "22477284", "title": "", "text": "proffer of a rebuttal that is subject to credibility questions do not, however, fully resolve this appeal. We must also determine whether each of the particular Appellees may be held liable for the acts alleged. Specifically, we must examine (1) whether Castar and Fried are entitled to qualified immunity from Nagle’s suit, and (2) whether the District is subject to municipal liability in the circumstances of this case. A. Qualified Immunity Although the statutory text of § 1983 provides for no immunities, it has been read “ ‘in harmony with general principles of tort immunities’ ” to provide qualified immunity for most government officials. Malley v. Briggs, 475 U.S. 335, 339, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (quoting Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). “Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’ ” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), modified by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. In the present case, the district court granted Fried and Castar immunity. Having determined that neither instance of Nagle’s expressive conduct was protected, and certainly was not “clearly” so, the court necessarily concluded that a reasonable official would not have been on notice that “considering such conduct in reaching an adverse employment decision violated” Nagle’s rights. Order at 22. Because we hold that one of" }, { "docid": "1454923", "title": "", "text": "final policymaking authority. II. STANDARD OF REVIEW We review de novo the district court’s grant of summary judgment. Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 689 (9th Cir. 2010). We must determine whether, viewing the evidence in the light most favorable to Delia, as the nonmoving party, “there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” California Alliance of Child and Family Servs. v. Allenby, 589 F.3d 1017, 1020 (9th Cir.2009). III. DISCUSSION A. Qualified Immunity — The City’s Employees “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In Pearson, the United States Supreme Court offered this explanation of the reasoning behind the concept of qualified immunity: “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. In fact, “[t]he protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’ ” Pearson, 129 S.Ct. at 815(quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)) (Kennedy, J., dissenting). In considering a claim for qualified immunity, the court engages in a two-part inquiry: whether the facts shown “make out a violation of a constitutional right,” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 129 S.Ct. at 815-16. In Pearson, the Court overruled its prior holding, in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that courts had to proceed through the" }, { "docid": "9807532", "title": "", "text": "accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine protects government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official asserting the defense of qualified immunity bears the burden of proof with respect to that defense. Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir.2013) (citation omitted). In reviewing a district court’s decision rejecting a defendant’s assertion of qualified immunity, we apply the analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), as modified by the Court’s later decision in Pearson. See Meyers, 713 F.3d at 731. The Court’s holding in Saucier requires a two-step approach, under which a court first must decide whether the undisputed facts show that the government official’s actions violated the plaintiffs constitutional rights. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). When the plaintiff has satisfied this initial step, a court must determine whether the right at issue was “clearly established” at the time of the events in question. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151); see Pearson, 555 U.S. at 236, 129 S.Ct. 808 (modifying the Saucier approach such that courts are no longer required to conduct the analysis in the sequence set forth in Saucier). In this case, we focus our analysis on the first prong of the Saucier test, namely, whether Danser has established for purposes of summary judgment that the defendants violated one of his constitutional rights. The constitutional right at issue is Danser’s Eighth Amendment right to be protected from violence committed by other prisoners. See Farmer, 511 U.S. at 833-35, 114 S.Ct. 1970. This constitutional right derives from the Supreme Court’s holdings that the treatment an inmate" }, { "docid": "23287232", "title": "", "text": "“[GJovernment 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “The central purpose of affording public officials qualified immunity from suit is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’ ” Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) (quoting Harlow, 457 U.S. at 806, 102 S.Ct. 2727). In reviewing claims for qualified immunity, we conduct a two-step analysis. See Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). First, we consider whether “[tjaken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 377, 127 S.Ct. 1769 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If the answer is yes, we next ask “whether the right was clearly established ... in light of the specific context of the case.” Id. (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151). “For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (internal citations omitted). While the sequence of this two-step inquiry is often appropriate, it is no longer mandatory. Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). “Once the qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006) (citing Barrett v. Steubenville City Schs., 388 F.3d 967, 970 (6th Cir.2004)). 1. Fourth Amendment Violation Because the Saucier sequence is appropriate here, we first ask whether, under the facts that Plaintiffs have alleged, a" }, { "docid": "23680024", "title": "", "text": "Sharp may have benefited from the delay because he was afforded the opportunity to introduce evidence at trial demonstrating that qualified immunity was improper under the circumstances. Consequently, the Magistrate Judge did not abuse her discretion by permitting Defendants to raise their qualified immunity defense at trial. The Magistrate Judge also did not err in holding that Defendants were protected by qualified immunity because they did not violate Sharp’s clearly established rights. We review the grant of qualified immunity de novo as it raises a purely legal issue. See Bums v. PA Dep’t of Corr., 642 F.3d 163 (3d Cir.2011). The qualified immunity doctrine “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citations and quotation marks omitted); see also Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir.2010). “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231, 129 S.Ct. 808. Qualified immunity protects “all but the plainly incompetent or' those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Ray, 626 F.3d at 173-74. Thus, so long as an official reasonably believes that his conduct complies with the law, qualified immunity will shield that official from liability. See Pearson, 555 U.S. at 244, 129 S.Ct. 808. In Saucier v. Katz, the Supreme Court established a two-part analysis for determining when qualified immunity is applicable: (1) whether the official’s conduct violated a constitutional or federal right; and (2) whether the right at issue was “clearly established.” 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson, 555 U.S. at 236, 129 S.Ct. 808 (relaxing the Saucier analysis by no longer requiring courts to determine" }, { "docid": "9807531", "title": "", "text": "denying their motion for summary judgment asserting qualified immunity. They contend that, as a matter of law, the undisputed material evidence failed to establish that they violated Danser’s constitutional rights. Before we address each defendant’s argument, we first set forth the applicable legal principles. We review de novo the denial of a motion for summary judgment asserting qualified immunity. Iko, 535 F.3d at 237. Summary judgment in such cases should be granted when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Id. at 230; Fed.R.Civ.P. 56(c). In reviewing the district court’s decision denying qualified immunity, we generally accept the facts as the court viewed them. Winfield, 106 F.3d at 530. Additionally, we may also consider any undisputed facts that the court did not use in its analysis. See id. at 532 n. 3, 535-36. The doctrine of qualified immunity “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine protects government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official asserting the defense of qualified immunity bears the burden of proof with respect to that defense. Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir.2013) (citation omitted). In reviewing a district court’s decision rejecting a defendant’s assertion of qualified immunity, we apply the analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), as modified by the Court’s later decision in Pearson. See Meyers, 713 F.3d at 731. The Court’s holding in Saucier requires a two-step approach, under which" }, { "docid": "8474938", "title": "", "text": "for their actions. The appellants provide only a generalized, cursory argument that the district court erred in finding qualified immunity, and as that is dispositive we confine our analysis to that issue. We review a district court’s grant of summary judgment based on qualified immunity de novo, accepting all facts and inferences in the light most favorable to the non-moving party. Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.2013). Under the doctrine of qualified immunity, officials are shielded from civil liability “ ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A right is clearly established if it is sufficiently clear that any reasonable official would understand that his or her actions violate that right, meaning that existing precedent must have placed the statutory or constitutional question beyond debate. Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015); Kingsley v. Hendrickson, 801 F.3d 828, 832 (7th Cir.2015). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mullenix, 136 S.Ct. at 308, quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Supreme Court has repeatedly cautioned against defining clearly established law at a high level of generality. Id.; City and County of San Francisco, Calif. v. Sheehan, — U.S. —, 135 S.Ct. 1765, 1775-76, 191 L.Ed.2d 856 (2015). The dispositive question is “whether the violative nature of particular conduct is clearly established.... ” This inquiry “ ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ ” ... Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that “[i]t is sometimes difficult for an officer to determine bow the relevant legal doctrine ... will apply to the factual situation the officer confronts.” [citations" }, { "docid": "19489871", "title": "", "text": "to the crux of this appeal. Having decided that all three defendants are entitled to assert the defense of qualified immunity, we must decide whether they are actually entitled to its protection. \"The doctrine of qualified immunity shields officials from civil liability so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Once invoked, a plaintiff bears the burden of rebutting qualified immunity by showing two things: (1) that the officials violated a statutory or constitutional right and (2) that the right was \" 'clearly established' at the time of the challenged conduct.\" Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ); see also McClendon v. City of Columbia , 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam) (\"When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.\"). Law is \"clearly established\" for these purposes only if \"the contours of the right [were] sufficiently clear that a reasonable official would understand that what he [was] doing violate[d] that right.\" Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). An official that violates a constitutional right is still entitled to qualified immunity if his or her actions were objectively reasonable. Spann v. Rainey , 987 F.2d 1110, 1114 (5th Cir. 1993). At bottom, a plaintiff must show that \"no reasonable officer could have believed his actions were proper.\" Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010). The parties agree that state officials have a duty under the Fourteenth Amendment to provide involuntarily detained persons with \"basic human needs, including medical care and protection from harm.\" Hare v. City of Corinth , 74" }, { "docid": "20836081", "title": "", "text": "New York, No. 10cv2689, 2011 WL 4444514, at *4 (S.D.N.Y. Sept. 26, 2011). Once the fact of a warrantless arrest has been established, the burden is on the arresting officer to prove probable cause for the arrest by a preponderance of the evidence. Garrett, 2011 WL 4444514, at *4. Even if an officer did not have probable cause for an arrest, the officer may still be shielded from liability for false arrest under the doctrine of qualified immunity. Qualified immunity protects government officials performing discretionary functions, such as arrests, “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014); Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”). “Requiring the alleged violation of law to be clearly established balances the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Wood v. Moss, — U.S. -, 134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039 (2014) (citation and internal quotation marks omitted). As the Supreme Court has explained, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citation omitted), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In the case of an arrest, an officer is entitled to qualified immunity if he had “arguable probable cause” to make" }, { "docid": "9002204", "title": "", "text": "no law clearly established \"what the [C]onstitution requires of a government official in [Palmer's] position under similar circumstances.\" As a result, the court held qualified immunity barred plaintiffs' federal constitutional claims. The court further dismissed plaintiffs' common law claims for failure to exhaust administrative remedies and declined to exercise supplemental jurisdiction over the remaining state constitutional claims. This appeal followed. II. Discussion A. Qualified Immunity We review the district court's qualified immunity analysis on a Rule 12(b)(6) motion de novo. Ewell v. Toney , 853 F.3d 911, 918 (7th Cir. 2017). In doing so, \"we consider the facts, including all reasonable inferences from them, in the light most favorable to the nonmoving party.\" Id. at 918-19. \"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). \"Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.\" Id. \"The defense provides 'ample room for mistaken judgments' and protects all but the 'plainly incompetent and those who knowingly violate the law.' \" Green v. Newport , 868 F.3d 629, 633 (7th Cir. 2017) (quoting Wheeler v. Lawson , 539 F.3d 629, 639 (7th Cir. 2008) ). \"A state official is protected by qualified immunity unless the plaintiff shows: '(1) that the official violated a statutory or constitutional right, and (2) that the right was \"clearly established\" at the time of the challenged conduct.' \" Kemp v. Liebel , 877 F.3d 346, 350-51 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). \"If either inquiry is answered in the negative, the defendant official\" is protected by qualified immunity. Green , 868" }, { "docid": "22086661", "title": "", "text": "C. Qualified Immunity Randall sued Scott in her individual and official capacities. Rl-18 at 1-2. Since federal law provides government officials a qualified immunity when sued individually for an alleged violation of a constitutional right, if Scott can establish qualified immunity, then the individual capacity claim against her must be dismissed. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (per curiam). Qualified immunity offers complete protection for individual government officials performing discretionary functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). In Saucier v. Katz, the Supreme Court mandated a two step analysis for resolving qualified immunity claims. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). First, a court must decide whether the facts that a plaintiff has alleged “show the [defendant’s] conduct violated a constitutional right.” Id. Second, the court must decide “whether the right was clearly established.” Id. For the purposes of this qualified immunity analysis, since we have already determined that Randall had some First Amendment protection violated, we are only concerned with whether the violated right was clearly established. “Clearly established law” is law that is sufficiently established so as to provide public officials with “fair notice” that the conduct alleged is prohibited. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an" }, { "docid": "5541906", "title": "", "text": "officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. at 807, 102 S.Ct. 2727. Qualified immunity “protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. Civ. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Tenth Circuit has stated: When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden,” [Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001) ] (internal quotation marks omitted), demonstrating, [ (i) ] that the defendant’s actions violated a constitutional or statutory right and, [ (ii) ] that the right at issue was clearly established at the time of the defendant’s allegedly unlawful conduct. In assessing whether the right was clearly established, we ask whether the right was sufficiently clear that a reasonable government officer in the defendant’s shoes would understand that what he or she did violated that right. If the plaintiff fails to satisfy either part of the two-part inquiry, we must grant the defendant qualified immunity. Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, the Supreme" } ]

[ { "docid": "22112947", "title": "", "text": "approval of three members of the cabinet, may commute punishment. Pursuant to rules adopted by the governor and the cabinet regarding executive clemency, Spenkelink appeared first before the Florida Parole and Probation Commission, which recommended to the governor that clemency be denied. Counsel for Spenkelink and for the State then appeared before the governor and cabinet to argue the clemency issue. On September 12, 1977, the governor denied clemency and signed a death warrant setting Spenkelink’s electrocution for 8:30 a. m. on September 19, 1977. On September 13, the petitioner, pursuant to Fla.R.Crim.P. 3.850, filed a motion to vacate, set aside or correct sentence in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. The motion was dismissed and the Supreme Court of Florida affirmed. Spenkelink v. State, 350 So.2d 85 (Fla.1977). The United States Supreme Court denied certiorari. Spenkelink v. Florida, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). B. Federal Court Proceedings Having exhausted his state court remedies, Spenkelink turned to federal court. On September 14 he filed a petition for habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. Judge William Stafford of the Northern District stayed the execution and scheduled an evidentiary hearing for September 21. At that time a hearing was held, which began during late morning and lasted into the evening, and which produced over 300 pages of testimony. On September 23 the district court dismissed the petition and ordered that the stay of execution expire at noon on September 30. The district court also granted Spenkelink a certificate of probable cause to appeal, pursuant to 28 U.S.C. § 2253. This Court then stayed the execution pending further order. II. The Petitioner’s Contentions On appeal Spenkelink urges three general contentions through which he asserts the contentions in his habeas corpus petition. First, he contends that the district court erroneously denied him the right to submit evidence during the evidentiary hearing on some of the contentions in his petition, which the" } ]

[ { "docid": "584581", "title": "", "text": "were determined in the trial court.” 333 U. S., at 202. This claim was submitted to and denied by the District Court for the Northern District of Florida on Monday, May 21, 1979. The District Court simultaneously entered a second order refusing certification of the appeal under both local and statutory rules, and denying a stay of execution pending appeal. Today, a panel of the Court of Appeals for the Fifth Circuit has, by a divided vote, denied applicant a certificate of probable cause, a certificate for leave to appeal in forma pauperis, and his motion for a stay of execution. Throughout these many hearings, appeals, and applications, there has been virtually no dispute that substantial evidence supported the jury’s verdict that applicant was guilty of first-degree murder, or that the Florida state trial judge had ample basis for following the jury’s recommendation that the death penalty be imposed. The Supreme Court of Florida in its opinion affirming applicant’s conviction stated: “As more fully set out above the record shows this crime to be premeditated, especially cruel, atrocious, and heinous and in connection with robbery of the victim to secure return of money claimed by Appellant. The aggravating circumstances justify imposition of the death sentence. Both Appellant and his victim were career criminals and Appellant showed no mitigating factors to require a more lenient sentence.” 313 So. 2d, at 671. The Court of Appeals for the Fifth Circuit, in afiirming the denial of federal habeas relief, said: “On February 4, 1973, petitioner John A. Spenkelink, a 24-year-old white male and twice convicted felon, who had escaped from a California correctional camp, murdered his traveling companion, Joseph J. Szymankiewicz, a white male, in their Tallahassee, Florida motel room. Spenkelink shot Szymankiewicz, who was asleep in bed, once in the head just behind the left ear and a second time in the back, which fragmented the spine, ruptured the aorta, and resulted in the victim’s death. [Spenkelink] then recounted a cover story to the motel proprietor in order to delay discovery of the body and left.” 578 F. 2d, at 586. When" }, { "docid": "584577", "title": "", "text": "Mr. Justice Rehnquist, Circuit Justice. This application for stay has come to me by reason of the unavailability of Mr. Justice Powell. On December 20, 1973, following a trial and jury verdict, applicant was sentenced to death pursuant to the Florida statute that we upheld in Proffitt v. Florida, 428 U. S. 242 (1976), for a murder committed in February 1973. On applicant’s appeal, the Supreme Court of Florida affirmed both the conviction and sentence, Spenkelink v. State, 313 So. 2d 666 (1975), and this Court denied certiorari. 428 U. S. 911 (1976). Applicant next sought executive clemency from the Governor of Florida, but his request for that relief was denied on September 12, 1977, and at the same time the Governor signed a death warrant setting applicant’s execution for 8:30 a. m. on September 19, 1977. The following day, applicant filed a motion for collateral relief in the Florida trial court that had convicted him; this motion, too, was denied, the Supreme Court of Florida affirmed its denial, Spenkelink v. State, 350 So. 2d 85 (1977), and we again denied certiorari. 434 U. S. 960 (1977). One day after he filed his petition for collateral relief in state court, however, applicant filed a petition for federal habeas corpus in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. That court stayed the execution and scheduled an evidentary hearing for September 21, 1977. At that time a hearing was held, which lasted from the late morning into the evening and produced over 300 pages of testimony. On September 23, the District Court dismissed the petition and ordered that the stay of execution previously issued by it terminate at noon on September 30. But the District Court also granted applicant a certificate of probable cause to appeal, and the Court of Appeals for the Fifth Circuit then stayed applicant’s execution pending its decision of his appeal. On August 21, 1978, a panel of the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. Spenkelink" }, { "docid": "22616260", "title": "", "text": "875; rehearing was denied on April 30, 1980. Petitioner’s execution was scheduled for September 17, 1980. On July 29, this Court granted a stay of execution pending the filing and disposition of a petition for certiorari, which was filed and then denied on June 29, 1981. Barefoot v. Texas, 453 U. S. 913. Petitioner’s execution was again scheduled by the state courts, this time for October 13,1981. An application for habeas corpus to the Texas Court of Criminal Appeals was denied on October 7, 1981, whereafter a petition for habeas corpus was filed in the United States District Court for the Western District of Texas. Among other issues, petitioner raised the same claims with respect to the use of psychiatric testimony that he had presented to the state courts. The District Court stayed petitioner’s execution pending action on the petition. An evidentiary hearing was held on July 28, 1982, at which petitioner was represented by competent counsel. On November 9, 1982, the District Court filed its findings and conclusions, rejecting each of the several grounds asserted by petitioner. The writ was accordingly denied; also, the stay of petitioner’s death sentence was vacated. The District Court, however, granted petitioner’s motion to proceed informa pauperis and issued a certificate of probable cause pursuant to 28 U. S. C. § 2253, which provides that an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a state court “unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.” Notice of appeal was filed on November 24, 1982. At this point, the Texas courts set January 25, 1983, as the new execution date. A petition for habeas corpus and motion for stay of execution were then denied by the Texas Court of Criminal Appeals on December 21,1982, and another motion for stay of execution was denied by the same court on January 11, 1983. On January 14, petitioner moved the Court of Appeals" }, { "docid": "20987367", "title": "", "text": "GODBOLD, Circuit Judge: On January 15, 1978 two young women, residents of a sorority house at Florida State University, Tallahassee, Leon County, Florida, were brutally murdered. Two other young women residing in the house were beaten and within an hour another young woman residing in a house nearby was attacked; these three victims survived. On July 24, 1979 Theodore Robert Bundy, the petitioner, was convicted of the two murders, three counts of attempted first degree murder, and two counts of burglary. The trial judge imposed death sentences for the murder convictions. The facts are set out in the opinion of the Florida Supreme Court affirming Bundy’s convictions and sentences in June 1984. Bundy v. State, 455 So.2d 330 (Fla.1984). Certiorari was denied by the United States Supreme Court on May 5, 1986. — U.S. —, 106 S.Ct. 1958, 90 L.Ed.2d 366. On May 22, 1986 the Governor of Florida signed a death warrant providing that Bun dy be executed before 12:00 noon on July 3, 1986. The execution was scheduled for 7:00 a.m. July 2. In June 1986 Bundy pursued collateral remedies available to him in the Florida state courts. These were finally exhausted on June 30, 1986 when the Florida Supreme Court affirmed the trial court’s denial of Bundy’s motions for collateral relief. 492 So.2d 1330. Bundy’s case was brought to the federal court system six and a half months ago. On June 30, 1986 he filed in the Southern District of Florida a federal habeas corpus petition (his first federal petition) some 172 pages in length and an application for a stay of execution. The petition is over-extensive. Accompanying the petition was a memorandum in support of the application for stay, of some 30 pages plus 17 pages of exhibits. Issues briefed at length in the memorandum were deprivation of a fair trial because of prejudicial publicity, denial of a full and fair hearing on competency to stand trial, and ineffectiveness of trial counsel. No evidentiary hearing was held. The district judge heard oral arguments on July 1. The same day he orally announced that he would deny" }, { "docid": "584579", "title": "", "text": "v. Wainwright, 578 F. 2d 582. In an opinion comprising 39 pages in the Federal Reporter, the Court of Appeals for the Fifth Circuit dealt at length with all of applicant’s claims, which had previously been rejected by the United States District Court and by the Supreme Court of Florida. It affirmed the judgment of the District Court, and we again denied certiorari on March 26,1979, with Mr. Justice Brennaw and Mr. Justice Marshall dissenting on the basis of their views set forth in Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976). 440 U. S. 976. According to the application now before me, the Governor of Florida again denied executive clemency on Friday, May 18, 1979, and signed a death warrant authorizing the execution of applicant on Wednesday, May 23, 1979, at 7 a. m., e. d. t. On Monday, May 21, applicant filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida requesting the court to stay his execution pending consideration and final determination of the petition. According to the applicant, the only point he seeks to preserve in his application to me for a stay is that under this Court’s decision in Presnell v. Georgia, 439 U. S. 14 (1978), “the failure to accord petitioner adequate advance notice of the aggravating circumstances alleged by the prosecution as the basis for seeking the death penalty” denied applicant rights secured to him by the Eighth and Fourteenth Amendments to the Constitution of the United States. In Presnell, supra, this Court held that the “fundamental principles of procedural fairness” enunciated in Cole v. Arkansas, 333 U. S. 196 (1948), “apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial.” 439 U. S., at 16. Cole, in turn, had held that “[t]o conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues" }, { "docid": "584578", "title": "", "text": "85 (1977), and we again denied certiorari. 434 U. S. 960 (1977). One day after he filed his petition for collateral relief in state court, however, applicant filed a petition for federal habeas corpus in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. That court stayed the execution and scheduled an evidentary hearing for September 21, 1977. At that time a hearing was held, which lasted from the late morning into the evening and produced over 300 pages of testimony. On September 23, the District Court dismissed the petition and ordered that the stay of execution previously issued by it terminate at noon on September 30. But the District Court also granted applicant a certificate of probable cause to appeal, and the Court of Appeals for the Fifth Circuit then stayed applicant’s execution pending its decision of his appeal. On August 21, 1978, a panel of the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. Spenkelink v. Wainwright, 578 F. 2d 582. In an opinion comprising 39 pages in the Federal Reporter, the Court of Appeals for the Fifth Circuit dealt at length with all of applicant’s claims, which had previously been rejected by the United States District Court and by the Supreme Court of Florida. It affirmed the judgment of the District Court, and we again denied certiorari on March 26,1979, with Mr. Justice Brennaw and Mr. Justice Marshall dissenting on the basis of their views set forth in Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976). 440 U. S. 976. According to the application now before me, the Governor of Florida again denied executive clemency on Friday, May 18, 1979, and signed a death warrant authorizing the execution of applicant on Wednesday, May 23, 1979, at 7 a. m., e. d. t. On Monday, May 21, applicant filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida requesting the court to stay his execution pending consideration" }, { "docid": "17012899", "title": "", "text": "ANDERSON, Circuit Judge: Porter was indicted on two counts of premeditated murder and tried before a jury in a Florida circuit court. On November 30, 1978, the jury returned a general verdict, finding Porter guilty on both counts. Following a sentencing hearing, the jury recommended that Porter receive life imprisonment rather than the death penalty. On December 11, 1978, the trial judge overrode the jury’s recommendation and sentenced Porter to death. On June 4, 1981, the Florida Supreme Court affirmed Porter’s conviction but vacated and remanded the case for resentenc-ing. Porter v. State, 400 So.2d 5 (Fla.1981). The basis for the order to vacate Porter’s sentence was a violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), i.e., that Porter had not been allowed to rebut certain deposition testimony that the judge considered for sentencing purposes. At resentencing before the judge only, Porter’s attorney presented evidence impeaching the previously unrebutted deposition testimony but presented little or no other evidence in mitigation. The trial judge again sentenced Porter to death. On January 27, 1983, Porter’s conviction and sentence were affirmed by the Florida Supreme Court. Porter v. State, 429 So.2d 293 (Fla.1983). The United States Supreme Court denied certiorari. 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). The governor of Florida denied clemency and signed a death warrant effective from October 22, 1985 to October 29, 1985. On October 22, 1985, Porter filed a motion in Florida circuit court to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850. He also applied for a stay of execution. The 3.850 motion and stay were denied on October 22, 1985. The Florida circuit court did not hold an evidentiary hearing. On October 26, 1985, Porter’s petition for federal habeas corpus was denied by the district court without benefit of an evidentiary hearing. That same day, this court granted a stay of Porter’s execution pending appeal. On appeal, Porter challenges both his first sentencing hearing before the trial judge and his second sentencing hearing before the trial judge. Porter claims that he was deprived of effective assistance" }, { "docid": "22616320", "title": "", "text": "ordinary money judgment. > HH Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting); Furman v. Georgia, 408 U. S. 238, 358-369 (1972) (Marshall, J., concurring), I would vacate petitioner’s death sentence. Title 28 U. S. C. § 2253 provides that “[i]n a habeas corpus proceeding before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had,” if the petitioner obtains a certificate of probable cause from “the justice or judge who rendered the order or a circuit justice or judge.” Carafas v. LaVallee, 391 U. S. 234, 242 (1968). Garrison v. Patterson, 391 U. S. 464, 466 (1968) (per curiam). Nowakowski v. Maroney, 386 U. S. 542, 543 (1967) (per curiam). See generally Blackmun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F. R. D. 343 (1967). While the Fifth Circuit followed a procedure in Brooks v. Estelle similar to that employed here, this Court’s denial of Brooks’ application for a stay and petition for certiorari before judgment does not constitute a precedent approving this procedure. Denials of certiorari never have precedential value, see, e. g., Brown v. Allen, 344 U. S. 443, 497 (1953); Sunal v. Large, 332 U. S. 174, 181 (1947); House v. Mayo, 324 U. S. 42, 48 (1945), and the denial of a stay can have no precedential value either since the Court’s order did not discuss the standard that courts of appeals should apply in passing on an application for a stay pending appeal. Until its recent rulings the Fifth Circuit also followed this approach. See United States ex rel. Goins v. Sigler, 250 F. 2d 128, 129 (1957). It has long been the rule that a death sentence imposed by a federal court will be stayed as a matter of course if the defendant takes an appeal. See Fed. Rule Crim." }, { "docid": "18939244", "title": "", "text": "Per Curiam. In March 1988, petitioner sought certiorari to review a decision of the United States Court of Appeals for the Fifth Circuit refusing to stay the execution of his death sentence. We granted a stay of execution, 485 U. S. 983 (1988), and withheld disposition of the petition pending our decision in Penry v. Lynaugh, 492 U. S. 302 (1989). Following that decision we granted certiorari in petitioner’s case to answer this question: “At the time petitioner was tried, was there ‘cause’ for not raising a claim based upon arguments later accepted in Penry v. Lynaugh, 492 U. S. 302 (1989), and if not, would the application of a procedural bar to the claim result in a ‘fundamental miscarriage of justice,’ Smith v. Murray, 477 U. S. 527, 537-538 (1986)?” 493 U. S. 888 (1989). Petitioner contended in his brief and in his oral argument that his claim for relief based on Penry would no longer be deemed procedurally barred by the Texas Court of Criminal Appeals. The Director of the Texas Department of Criminal Justice, respondent here, disputes that contention. Because our decision in Penry was handed down after petitioner’s petition for certiorari was filed, and may have affected the view of the Texas Court of Criminal Appeals on the issue whether petitioner’s claim is presently barred, we think that issue should be decided before we address the question on which we granted certiorari. The Court of Appeals for the Fifth Circuit is more familiar with Texas law than we are, and we therefore vacate the judgment of the Court of Appeals and remand the case to it for determination whether petitioner’s Penry claim is presently procedurally barred under Texas law. It is so ordered. Justice Brennan, concurring. I concur in the Court’s disposition of the case. Even if I did not, I would vacate petitioner’s death sentence. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment. See Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting). Justice Blackmun, with whom Justice Brennan joins, concurring. I concur" }, { "docid": "21907650", "title": "", "text": "Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay in order to give applicant time to file a petition for writ of certiorari, and would grant the petition and vacate the death sentence in this case. Justice Stevens, with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, dissenting. Roy Allen Stewart was convicted of first-degree murder in Dade County Circuit Court and sentenced to death. The Florida Supreme Court affirmed the conviction and sentence. Stewart v. State, 420 So. 2d 862 (1982), cert. denied, 460 U. S. 1103 (1983). The Governor signed Stewart’s death warrant. Stewart filed a petition for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. The court stayed the execution, held an evidentiary hearing, and denied the petition. The Florida Supreme Court affirmed. Stewart v. State, 481 So. 2d 1210 (1985). The Governor signed a second death warrant scheduling the execution for 7 a.m. on October 7, 1986. Stewart then filed a post-trial motion and application for stay of execution in the Florida Supreme Court, arguing that the State’s administration of the death penalty violates the Eighth and Fourteenth Amend ments because capital punishment is imposed disproportionately on prisoners whose victims were members of the white race. This question is similar to those presented in McCleskey v. Kemp, No. 84-6811, and Hitchcock v. Wainwright, No. 85-6756, cases that are to be argued before this Court on October 15, 1986. The Florida Supreme Court denied Stewart’s motion and application for stay, ruling that “Stewart did not raise this claim in his previous 3.850 motion, and he is procedurally barred from raising it in this petition.” Stewart v. Wainwright, 494 So. 2d 489, 490 (1986). Stewart then filed a second motion for postconviction relief" }, { "docid": "19041451", "title": "", "text": "applicant’s execution was set for February 5,1982. He then brought two motions for postconviction relief in state court. The motions raised a number of claims, including ineffective assistance of counsel, further Brady violations, and challenges to applicant’s arrest under Payton v. New York, 445 U. S. 573 (1980), and to the constitutionality of the death penalty statute, as well as various challenges to the selection of the jury and the trial proceedings. After an evidentiary hearing, the trial court denied relief, and the Florida Supreme Court affirmed. Antone v. Strickland, 410 So. 2d 157 (1982). On January 22, 1982, applicant filed a petition for a writ of habeas corpus in the District Court for the Middle District of Florida. On January 29, 1982, after oral argument, the District Court denied the petition. The Court of Appeals granted a stay and remanded to the District Court for further consideration of applicant’s claims. On remand, the District Court again denied relief, and the Court of Appeals affirmed. Antone v. Strickland, 706 F. 2d 1534 (CA11 1983). This Court denied certiorari on November 28, 1983, 464 U. S. 1003, and denied a petition for rehearing on January 9, 1984, 464 U. S. 1064. II On January 4, 1984, the Governor signed a warrant for the execution of applicant between noon Friday, January 20, and noon Friday, January 27. The execution was subsequently set for January 24, 1984, at 7 a. m. On January 17, applicant filed a second motion for postcon-viction relief in the state courts, alleging ineffective assistance at the penalty stage of his trial and unconstitutionality of the Florida death penalty statute under Lockett v. Ohio, 438 U. S. 586 (1978). The motion was denied. On Friday afternoon, January 20, the Florida Supreme Court affirmed, noting that these claims had been considered and rejected in applicant’s prior postconviction proceeding. Applicant also filed a “petition for extraordinary relief” in the Florida Supreme Court, questioning the propriety of that court’s use of extra-record materials in reviewing death sentences. The State Supreme Court denied the petition, again noting that applicant’s claim previously had been" }, { "docid": "15566965", "title": "", "text": "C. A. 11th Cir. The order heretofore entered staying the execution of the sentence of death until 5 p.m., May 20, 1986, is vacated. The application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is denied. Justice Stevens would grant the application for stay of execution. Justice Powell, joined by The Chief Justice, Justice Rehnquist, and Justice O’Connor, concurring in the denial of a stay. In view of the discussion in the dissents, I write to summarize my reasons for voting to deny a stay in this case. Ronald Straight is here on his second federal habeas corpus petition. In his first petition, Straight argued that he was handicapped by the reasonable belief of trial counsel and the trial judge that Florida law barred the introduction of nonstatutory mitigating evidence at capital sentencing proceedings. Cf. Lockett v. Ohio, 438 U. S. 586 (1978). The District Court denied relief on this claim, and on Straight’s other claims as well, and the Court of Appeals for the Eleventh Circuit affirmed. Straight v. Wainwright, 772 F. 2d 674 (1985). Less than seven weeks ago, this Court denied Straight’s petition for certiorari, a petition that again raised his Lockett argument. 475 U. S. 1099. In his second habeas petition, filed late yesterday, Straight raises the same substantive legal claim, and adds various new factual allegations in support. The District Court properly found that, to the extent Straight seeks to relitigate the same claims raised earlier, his petition should be dismissed under Habeas Corpus Rule 9(b) as a successive petition. The court also found that, to the extent that Straight sought to make new arguments that plainly could have been raised earlier, his petition was an abuse of the writ. See Woodard v. Hutchins, 464 U. S. 377, 378-380 (1984) (Powell, J., joined by Burger, C. J., and Blackmun, Rehnquist, and O’Connor, JJ., concurring). The Court of Appeals found no error in the District Court’s disposition, and denied a certificate of probable cause to appeal. The Court of Appeals granted a stay of execution" }, { "docid": "13416826", "title": "", "text": "is, presumably, in all proceedings since the trial and conviction in September, 1979, appeared in the federal habe-as corpus proceedings. The petitioner filed in the United States District Court for the Western District of North Carolina a timely notice of appeal to this Court, an application for a stay of execution, and an application for a certificate of probable cause to appeal. On September 1,1983, the district court denied the petitioner’s applications. On October 11, 1983, the petitioner filed an application for a certificate of probable cause and an application for a stay of execution in this Court. We allowed the application for a certificate of probable cause but denied the application for a stay, electing instead to hear the appeal on an expedited basis. Argument took place on December 6, 1983. Our decision will have been taken and the parties informed of it sufficiently before January 13,1984, the date for which execution has been scheduled, to make inappropriate a grant of the requested stay. II The review of a death sentence and the conviction upon which it rests is by definition difficult and demanding. It imposes on judges the severest of the tasks assigned to them. “[D]eath is a different kind of punishment from any other which may be imposed in this country.” Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (Stevens, J., joined by Stewart and Powell, JJ.). The death penalty raises strong feelings in almost everyone. The members of this Court each hold serious, though perhaps not identical, views about the wisdom and the morality of capital punishment. “Our individual preferences, however, are not the constitutional standard.” Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). It is clear that the states may constitutionally impose death sentences so long as the requirements of due process are met. See Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Only two Supreme Court justices maintain that capital punishment is in all circumstances cruel" }, { "docid": "7572973", "title": "", "text": "error of constitutional magnitude in the refusal to postpone the final arguments until the following day in light of the court’s promise to consider the written memorandum for that purpose. Therefore, Raulerson has failed to show that the state trial court abused its discretion by refusing to grant a continuance. V. Failure to Permit Sufficient Time to Prepare for District Court Hearing. On August 5, 1983, the Governor of Florida signed Raulerson’s death warrant, directing that his sentence be carried out during the week of September 2, 1983. The state chose September 7, 1983 as the execution date. Raulerson’s current counsel undertook his representation on August 22, 1983 by filing a motion for post conviction relief in the state court. Fla.R.Crim.P. 3.850. The motion was denied and the Florida Supreme Court affirmed the decision on September 1, 1983. Having exhausted his state remedies, Raulerson then filed this petition in the district court on Friday, September 2, 1983. Because of the holiday weekend, the court set the case for an evidentiary hearing on Tuesday, Sep tember 6, 1983. After the hearing, the court granted a forty-eight hour stay of execution, thereby extending the date to Friday, September 9, 1983. On September 8, 1983 the district court entered its order denying the writ, an application for a stay of execution and additional briefing time. The court did grant a certificate of probable cause to appeal. In order to evaluate fully the merits of Raulerson’s claims, this court granted a requested stay of execution. Raulerson does not complain of the lack of an evidentiary hearing in the district court but rather he claims that his counsel had insufficient time for the background research necessary to adequately develop the facts at the hearing. The district court is required to grant an evidentiary hearing where the facts were not sufficiently developed in the state court. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The courts of appeal are bound to stay a pending execution if there is not sufficient time to “consider properly the merits of the issues raised”" }, { "docid": "19041449", "title": "", "text": "Per Curiam. We consider an application for a stay of execution that had been set for January 24, 1984, at 7 a. m., and a petition for writ of certiorari. The Court of Appeals for the Eleventh Circuit granted a temporary stay until January 25, at 12 noon, to afford applicant an opportunity to apply to this Court for a stay of execution. At the same time, the Court of Appeals denied applicant’s request for issuance of a certificate of probable cause and his application for an indefinite stay of execution. The application and petition now before us were not filed until January 25, shortly after the expiration of the temporary stay. The State has filed an opposition to the pending application. HH Oñ August 27, 1976, a jury convicted applicant of first-degree murder. He was sentenced to death. The evidence upon which the conviction was based showed that applicant had planned the “contract murder” of a Tampa police officer, apparently to prevent the officer from testifying at a grand jury investigation of “Mob” activities. On the first appeal, the Florida Supreme Court remanded for a hearing on the question whether the failure to disclose an attorney’s-fees arrangement between the State and one of the prosecution witnesses had violated applicant’s due proc ess rights under Brady v. Maryland, 373 U. S. 83 (1963), and United States v. Agurs, 427 U. S. 97 (1976). Antone v. State, 365 So. 2d 777 (1978). The trial court found that there was no violation. On the second appeal, the Florida Supreme Court affirmed the conviction. Antone v. State, 382 So. 2d 1205 (1980). This Court denied certiorari. 449 U. S. 913 (1980). Applicant was also a party to an unsuccessful suit challenging the Florida Supreme Court’s use of extra-record materials in conducting proportionality review of death sentences. Brown v. Wainwright, 392 So. 2d 1327 (1981), cert. denied, 454 U. S. 1000 (1981). (This practice was also challenged in Ford v. Strickland, 696 F. 2d 804 (CA11), cert. denied, 464 U. S. 865 (1983); applicant was not a party to that litigation.) On January 6,1982," }, { "docid": "22616263", "title": "", "text": "of probable cause is issued by the district court, the court of appeals must give the parties an opportunity to address the merits. In its view, the parties had been given “an unlimited opportunity to make their contentions upon the underlying merits by briefs and oral argument.” 697 F. 2d, at 596. The Court of Appeals then proceeded to address the merits of the psychiatric testimony issue, together with new claims not presented to the District Court, that the state court had no jurisdiction to resentence petitioner and that newly discovered evidence war ranted a new trial. Each of the grounds was discussed by the court and rejected. The court concluded that since the petition had no substantial merit, a stay should be denied. Petitioner then filed an application for stay of execution with the Circuit Justice for the Fifth Circuit, who referred the matter to the Court. On January 24, 1983, the Court stayed petitioner’s execution and, treating the application for stay as a petition for writ of certiorari before judgment, granted certiorari. 459 U. S. 1169. The parties were directed to brief and argue “the question presented by the application, namely, the appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner, and also the issues on appeal before the United States Court of Appeals for the Fifth Circuit.” Ibid. The case was briefed and orally argued here, and we now affirm the judgment of the District Court. With respect to the procedures followed by the Court of Appeals in refusing to stay petitioner’s death sentence, it must be remembered that direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception. When the process of direct review— which, if a federal question is involved, includes the right to petition this Court for a writ of certiorari — comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while" }, { "docid": "19041452", "title": "", "text": "Court denied certiorari on November 28, 1983, 464 U. S. 1003, and denied a petition for rehearing on January 9, 1984, 464 U. S. 1064. II On January 4, 1984, the Governor signed a warrant for the execution of applicant between noon Friday, January 20, and noon Friday, January 27. The execution was subsequently set for January 24, 1984, at 7 a. m. On January 17, applicant filed a second motion for postcon-viction relief in the state courts, alleging ineffective assistance at the penalty stage of his trial and unconstitutionality of the Florida death penalty statute under Lockett v. Ohio, 438 U. S. 586 (1978). The motion was denied. On Friday afternoon, January 20, the Florida Supreme Court affirmed, noting that these claims had been considered and rejected in applicant’s prior postconviction proceeding. Applicant also filed a “petition for extraordinary relief” in the Florida Supreme Court, questioning the propriety of that court’s use of extra-record materials in reviewing death sentences. The State Supreme Court denied the petition, again noting that applicant’s claim previously had been considered by the court in Brown v. Wainwright, supra, and by the Court of Appeals for the Eleventh Circuit in Antone v. Strickland, supra. Applicant then filed a second petition for a writ of habeas corpus in the District Court on January 20. Of the claims presented in that petition, applicant previously had raised in his first federal habeas petition the contentions that trial counsel was ineffective and that the State unjustifiably withheld testimony of a confidential informant. Nonetheless, applicant urged that these claims be reconsidered, as the press of time during the first set of collateral proceedings had denied his counsel a “full and fair opportunity” to develop the claims in the state and federal courts. Applicant’s second habeas petition also contained several claims that purportedly had not been raised in his first federal habeas petition: (i) that the State violated Brady and Agurs by failing to disclose prior to trial that the chief prosecution witness had counsel whose fees were paid by the State, despite trial counsel’s discovery demand for “any material or" }, { "docid": "584580", "title": "", "text": "and final determination of the petition. According to the applicant, the only point he seeks to preserve in his application to me for a stay is that under this Court’s decision in Presnell v. Georgia, 439 U. S. 14 (1978), “the failure to accord petitioner adequate advance notice of the aggravating circumstances alleged by the prosecution as the basis for seeking the death penalty” denied applicant rights secured to him by the Eighth and Fourteenth Amendments to the Constitution of the United States. In Presnell, supra, this Court held that the “fundamental principles of procedural fairness” enunciated in Cole v. Arkansas, 333 U. S. 196 (1948), “apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial.” 439 U. S., at 16. Cole, in turn, had held that “[t]o conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” 333 U. S., at 202. This claim was submitted to and denied by the District Court for the Northern District of Florida on Monday, May 21, 1979. The District Court simultaneously entered a second order refusing certification of the appeal under both local and statutory rules, and denying a stay of execution pending appeal. Today, a panel of the Court of Appeals for the Fifth Circuit has, by a divided vote, denied applicant a certificate of probable cause, a certificate for leave to appeal in forma pauperis, and his motion for a stay of execution. Throughout these many hearings, appeals, and applications, there has been virtually no dispute that substantial evidence supported the jury’s verdict that applicant was guilty of first-degree murder, or that the Florida state trial judge had ample basis for following the jury’s recommendation that the death penalty be imposed. The Supreme Court of Florida in its opinion affirming applicant’s conviction stated: “As more fully set out above the record shows this crime to be premeditated," }, { "docid": "5695102", "title": "", "text": "ALBERT J. HENDERSON, Circuit Judge: Stephen Todd Booker appeals from dismissal by the United States District Court for the Northern District of Florida of his petition for a writ of habeas corpus. Finding no error in the district court’s judgment, we affirm. On June 21, 1978, Booker was found guilty of burglary, sexual assault and first degree murder in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida. Concluding that the murder was perpetrated in an “especially heinous, atrocious or cruel” manner, the jury recommended the death penalty. On October 20, 1978, the trial judge sentenced Booker to death. The Florida Supreme Court upheld the conviction and sentence on March 19, 1981. Booker v. State, 397 So.2d 910 (Fla.1981). The Supreme Court of the United States denied his petition for certiorari on October 19, 1981. Booker v. Florida, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). The governor of Florida subsequently conducted clemency review proceedings on February 17, 1982. On March 22, 1982 the governor signed a warrant of execution, and Booker’s sentence was scheduled for execution on April 21, 1982. On April 13, 1982, the petitioner filed a motion for post-conviction relief in the Florida circuit court. The court denied the motion the next day, and the Florida Supreme Court affirmed the judgment of the circuit court on April 19, 1982. Booker v. State, 413 So.2d 756 (Fla.1982). Also on April 13, 1982 Booker filed his first petition for a writ of habeas corpus and an application for stay of execution in the United States District Court for the Northern District of Florida. The application and petition were denied on April 19 and 20, 1982, respectively. On April 20, 1982 this court granted a stay of execution in order to review fully the district court’s decision. Booker v. Wainwright, 675 F.2d 1150 (11th Cir.1982). The district court opinion was affirmed by this court on April 25, 1983. Booker v. Wainwright, 703 F.2d 1251, reh’g denied, 708 F.2d 734 (11th Cir. 1983). On October 17, 1983, the United States Supreme Court denied certiorari." }, { "docid": "18605133", "title": "", "text": "presented during evidentiary hearing was known and available to counsel at time of sentencing, but that counsel made a tactical decision not to present such evidence), cert. denied, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 161 (1987). In April of 1989, after the trial court had reinstated his death sentences, Bolender filed a second motion for postconviction relief under Rule 3.850. The Governor signed a second death warrant in January, 1990, and execution was scheduled for March 7 of that year. Following oral argument, the trial court found Bolender’s motion to be a successive Rule 3.850 petition and denied relief without holding an evidentiary hearing. Bo-lender appealed this judgment and, on March 5, 1990, filed an application for a stay of execution and a petition for writ of habeas corpus in the Florida Supreme Court. The stay was granted in order to allow the trial court to hear additional arguments. After the court again denied relief, the Florida Supreme Court heard oral argument and denied relief as to all pending claims. Bolender v. Dugger, 564 So.2d 1057 (Fla.1990) (“Bolender III”). The Governor then signed a third death warrant, and Bolender’s execution was scheduled for October 4, 1990. At this point, Bolender entered the federal system by filing the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida on October 1, 1990. The district court granted a stay of execution and held two days of non-evidentiary hearings to address the matters presented by Bolender’s petition. The district court then denied Bolender’s requests for an evidentiary hearing and denied relief. Bolender v. Dugger, 757 F.Supp. 1400 (S.D.Fla.1991). The court did grant a certificate of probable cause to appeal, however, and this appeal ensued. Bolender appeals the denial of the writ of habeas corpus as to five of his claims as well as the district court’s refusal to conduct an evidentiary hearing. Ordinarily, we discuss claims on appeal relating to a criminal defendant’s conviction before evaluating possible sentencing errors. In this case, however, we find no merit to Bolender’s guilt phase" } ]

[ { "docid": "22818405", "title": "", "text": "cases, standing for the proposition that temporal proximity alone is not sufficient to establish a causal connection for a retaliation claim. See e.g. Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir.2007); Randolph v. Ohio Dept. of Youth Serv., 453 F.3d 724, 737 (6th Cir.2006); Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir.2001). Those cases required other evidence of retaliatory conduct, in addition to temporal proximity, to demonstrate a causal connection. See Tuttle, 474 F.3d at 321 (citing Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir.1999)). But we have never — at least in a published opinion — dealt with a case like the one before us here. Nguyen should be read as leaving the door open very slightly for a finding that in a case in which the employer’s learning of the protected activity is so closely followed by the employer’s taking of an adverse action that the two are virtually contemporaneous— exactly the circumstances in this case — the temporal proximity between the two is alone sufficient to establish the causal connection necessary for the fourth prong of a prima facie case of retaliation. As the lead opinion points out, upon arriving at Zeidler Tool & Die on the morning of October 19, 2004, DeForge learned of Mickey’s EEOC complaint. When Mickey arrived at 7:30 a.m., De-Forge immediately fired him. There was virtually no time between these two events for DeForge to engage in any other conduct that would demonstrate any retaliatory motive or intent. Hence, Zeidler “ironically [has] a stronger defense than those who delay in taking adverse retaliatory action.” Lead opinion at 7. In this factually unusual case, the extremely close temporal proximity between these events does permit an inference that DeForge fired Mickey because of Mickey’s protected activity. Realizing that our precedent suggests that temporal proximity is not enough to establish the fourth prong of a prima facie case of retaliation, the lead opinion attempts to supply additional evidence of retaliation in the form of actions taken by DeForge before Mickey filed his EEOC" } ]

[ { "docid": "22042041", "title": "", "text": "burden to establish a prima facie case of retaliation “is not onerous.” Indeed, it “is a burden easily met.” Further, to estab lish the element of causal link a plaintiff is required to “proffer evidence ‘sufficient to raise the inference that her protected activity was the likely reason for the adverse action.’ ” Accordingly, at the prima facie stage the burden is minimal, requiring the plaintiff to put forth some evidence to deduce a causal connection between the retaliatory action and the protected activity and requiring the court to draw reasonable inferences from that evidence, providing it is credible. Id. at 861 (internal citations omitted). The specific issue of temporal proximity was addressed in Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir.1996). There, we held that even though one year and three months had elapsed between the filing of the EEOC charge and the plaintiffs termination, that time lapse, when considered in conjunction with the evidence that three other employees who testified on the plaintiffs behalf feared retaliation and the supervisor had made repeated comments that he would not hesitate to run employees out of his department, was sufficient to establish a prima facie case of retaliation. See id. at 1119 (“This evidence, taken together with the timetable of Mr. Harrison’s EEOC charge and termination, convinces us that the plaintiff established a prima facie case of retaliation.”) (emphasis added); see also Moore v. KUKA Welding Systems, 171 F.3d 1073, 1080 (6th Cir.1999) (holding that the close proximity in time between the adverse action and the protected activity coupled ivith the evidence of frequent discipline for trivial matters and unwarranted criticism of the plaintiffs work, ivhen viewed as a whole, supported the jury’s finding of retaliation). In both Harrison and Moore, we found a causal connection when the temporal proximity was considered along with other evidence of retaliatory conduct. We have also spoken on the question of whether temporal proximity between the protected activity and the adverse action, in and of itself, is sufficient to establish a causal connection. See Cooper v. City of North Olmsted, 795 F.2d" }, { "docid": "23288157", "title": "", "text": "Cir.1996). This case presents just such a circumstance where the temporal proximity considered with other evidence of retaliatory conduct is sufficient to create a genuine issue of material fact as to the existence of a causal connection between Plaintiffs filing of the two EEOC complaints and his suspension and termination as well as other alleged retaliatory conduct. Harrison is instructive on this issue. In that case, the plaintiff had won one lawsuit against the employer, had filed four charges of discrimination with the EEOC, and had written a memorandum complaining of his harassment to the harassing supervisor and the department head. Harrison, 80 F.3d at 1118. In Harrison, the plaintiff was suspended in August 1991; the plaintiff filed an EEOC complaint after his suspension and was thereafter discharged in November 1992. Id. This Court held that temporal proximity in combination with the evidence of retaliatory conduct was sufficient to establish a causal connection between the protected activity and the adverse employment action. The Court noted, [a]t most, one year and three months elapsed between his filing of a charge and his termination. In addition, the evidence showed that three employees feared retaliation because they testified at Mr. Harrison’s hearing, and that [the supervisor] made repeated comments that suggested he would not hesitate to run employees out of his department. This evidence, taken together with the timetable of Mr. Harrison’s EEOC charge and termination, convinces us that the plaintiff established a prima facie case of retaliation. More important, however, is the fact that study of the record in this case reveals an atmosphere in which the plaintiffs activities were scrutinized more carefully than those of comparably situated employees, both black and white, and that the defendants took every opportunity to make his life as an employee unpleasant.... [W]e conclude that [the evidence] does support a finding of retaliation. Id. at 1119. This Court reached a similar conclusion in Moore, holding that the plaintiff had presented sufficient evidence to show that his isolation was prompted by the filing of his EEOC complaint. 171 F.3d at 1080. In Moore, the Court stated that" }, { "docid": "23288155", "title": "", "text": "support his claim, Plaintiff presented his affidavit and the affidavit of Angela Shields, a fellow employee. Shield’s affidavit provided that she was “present during conversations where the supervisory personnel of the Defendant BP directed me and several of my fellow employees to make false accusations and complaints against Robert Little so that BP could use the same as justification for terminating Robert Little from employment.” (J.A. at 173-74.) Shields and other employees were told that “if we did not make the claims and allegations against Robert Little we would be fired or ‘let go’ from our employment positions.” (J.A. at 174.) Shields and other employees therefore “did he on and make false claims of harassment and theft against Robert Little.” (J.A. at 174.) Plaintiffs affidavit states that he was disciplined for failing to wear his uniform after filing his second EEOC complaint, while other employees, who likewise were not wearing their uniforms, were not disciplined. Plaintiffs affidavit also states that he was told by Shields and other fellow employees that they (the fellow employees) were instructed to make false claims of theft and harassment against Plaintiff or be terminated. Plaintiffs first EEOC complaint was filed on February 27, 1996. The second complaint was filed on October 16, 1996. The basis of Plaintiffs second EEOC complaint was the type of conduct described in Shields’ affidavit. Plaintiff stated in his EEOC complaint and in his deposition that those occasions on which he was falsely accused of theft and harassment occurred in August and September of 1996. Plaintiff was suspended on January 9, 1997 and terminated on January 24, 1997 after filing the second EEOC complaint. While it is true that temporal proximity alone is insufficient to establish a causal connection for a retaliation claim, Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.2000), there are circumstances where temporal proximity considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection. See, e.g., Moore v. KUKA Welding Sys., 171 F.3d 1073 (6th Cir.1999); Harrison v. Metro. Gov’t of Nashville & Davidson County, Tenn., 80 F.3d 1107 (6th" }, { "docid": "22042042", "title": "", "text": "made repeated comments that he would not hesitate to run employees out of his department, was sufficient to establish a prima facie case of retaliation. See id. at 1119 (“This evidence, taken together with the timetable of Mr. Harrison’s EEOC charge and termination, convinces us that the plaintiff established a prima facie case of retaliation.”) (emphasis added); see also Moore v. KUKA Welding Systems, 171 F.3d 1073, 1080 (6th Cir.1999) (holding that the close proximity in time between the adverse action and the protected activity coupled ivith the evidence of frequent discipline for trivial matters and unwarranted criticism of the plaintiffs work, ivhen viewed as a whole, supported the jury’s finding of retaliation). In both Harrison and Moore, we found a causal connection when the temporal proximity was considered along with other evidence of retaliatory conduct. We have also spoken on the question of whether temporal proximity between the protected activity and the adverse action, in and of itself, is sufficient to establish a causal connection. See Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir.1986). In Cooper, we rejected the proposition that temporal proximity is enough, noting that the plaintiff had pointed to no additional evidence to support a finding that the protected activity and the adverse action were connected: The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference [sic] of retaliation .... The record in this case contains no evidence directly linking the nine citations at issue to Cooper’s filing of the OCRC discrimination charges. Id. at 1272. We reaffirmed our holding in Cooper in at least one subsequent opinion: A causal link can be shown by either of two methods: (1) through direct evidence; or (2) through knowledge coupled with a closeness in time that creates an inference of causation.... However, temporal proximity alone will not support an inference of retaliatory discrimination when there is no other compelling evidence. Parnell v. West, 1997 WL 271751, *2 (6th Cir.1997). Nguyen argues that Parnell should be read to hold that temporal proximity alone may be sufficient" }, { "docid": "22818391", "title": "", "text": "proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality. See Little, 265 F.3d at 365 (“[T]emporal proximity, when considered with the other evidence of retaliatory conduct, is sufficient to create a genuine issue of material fact as to” a causal connection.). The reason for this distinction is simple: if an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation. Thus, employers who retaliate swiftly and immediately upon learning of protected activity would ironically have a stronger defense than those who delay in taking adverse retaliatory action. Moreover, such a holding would accord with cases from other circuits, which recognize that, in rare cases, temporal proximity alone may suffice to show a causal connection. See Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir.2002) (“[M]ere temporal proximity between the filing of the charge of discrimination and the action alleged to have been taken in retaliation for that filing will rarely be sufficient in and of itself to create a triable issue.”); O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1252 (10th Cir.2001) (stating that “[u]nless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation,” and noting that a pri- or case “ ‘held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation’ ”) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999)); Cardenas v. Massey, 269 F.3d 251, 264 (3d Cir.2001) (“[Tjemporal proximity alone will be insufficient to establish the necessary causal connection" }, { "docid": "2647499", "title": "", "text": "that “temporal proximity, standing alone, is not enough to establish a causal connection for a retaliation claim,” but elaborating that “there are circumstances in which temporal proximity, when combined with other evidence of retaliatory conduct, is enough to establish a causal connection”); Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir.2007) (noting that “temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim,” but elaborating further that “[t]here are, however, circumstances where temporal proximity, considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection”). DCS gives short shrift to other evidence proffered by Montell. Montell’s allegation is that her protected activity occurred on Thursday, May 19, 2011, and that the very next day, Day presented her with an ultimatum that she should resign or else he would fire her. Certainly, through her own deposition testimony, Montell has presented enough evidence that, wefe the jury to believe her story, they could make the reasonable inference that the adverse employment action is so close in time after an employer learns of a protected activity that the action was caused by that activity. See Mickey, 516 F.3d at 525. Moreover, Montell does not rely on temporal proximity alone. While it is nearly impossible to come up with other evidence that the adverse employment action was retaliatory where the adverse action comes directly on the heels of the protected activity, see id. (pointing out that “if an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation”), Montell does point to two acts by Day that could be construed as evidence that her discharge was retaliatory. First, Day, soon after finding out that Montell had lodged a sexual harassment complaint against him, called Montell and told her to resign or that she would be fired. Second, Day called the FRMC liaison with whom Montell worked and" }, { "docid": "2647500", "title": "", "text": "in time after an employer learns of a protected activity that the action was caused by that activity. See Mickey, 516 F.3d at 525. Moreover, Montell does not rely on temporal proximity alone. While it is nearly impossible to come up with other evidence that the adverse employment action was retaliatory where the adverse action comes directly on the heels of the protected activity, see id. (pointing out that “if an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation”), Montell does point to two acts by Day that could be construed as evidence that her discharge was retaliatory. First, Day, soon after finding out that Montell had lodged a sexual harassment complaint against him, called Montell and told her to resign or that she would be fired. Second, Day called the FRMC liaison with whom Montell worked and told the liaison that Montell had resigned before Montell had done so, thus undermining Montell’s ability to remain on the job. Montell has presented sufficient evidence of this alleged conduct from which a jury certainly could conclude that the temporal proximity of the adverse action to the sexual harassment report and the efforts taken by Day to undermine Montell at her worksite and force her to resign establish that Day was retaliating against Montell for her sexual harassment report. While DCS leads with the argument that Montell has nothing but temporal proximity to establish causation and that temporal proximity alone is not enough, DOS’s contention goes beyond simply maintaining that Montell has not presented enough evidence of causation. DCS also claims that because the adverse employment action — Montell’s discharge — was contemplated before Montell’s protected activity, “[a] causal connection cannot be established by temporal proximity.” Appellee Br. at 22. In essence, DCS is asking us to discount Montell’s reliance on temporal proximity, see id. at 24 (stating that “Mon-tell cannot rely on temporal proximity”)," }, { "docid": "23288156", "title": "", "text": "instructed to make false claims of theft and harassment against Plaintiff or be terminated. Plaintiffs first EEOC complaint was filed on February 27, 1996. The second complaint was filed on October 16, 1996. The basis of Plaintiffs second EEOC complaint was the type of conduct described in Shields’ affidavit. Plaintiff stated in his EEOC complaint and in his deposition that those occasions on which he was falsely accused of theft and harassment occurred in August and September of 1996. Plaintiff was suspended on January 9, 1997 and terminated on January 24, 1997 after filing the second EEOC complaint. While it is true that temporal proximity alone is insufficient to establish a causal connection for a retaliation claim, Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.2000), there are circumstances where temporal proximity considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection. See, e.g., Moore v. KUKA Welding Sys., 171 F.3d 1073 (6th Cir.1999); Harrison v. Metro. Gov’t of Nashville & Davidson County, Tenn., 80 F.3d 1107 (6th Cir.1996). This case presents just such a circumstance where the temporal proximity considered with other evidence of retaliatory conduct is sufficient to create a genuine issue of material fact as to the existence of a causal connection between Plaintiffs filing of the two EEOC complaints and his suspension and termination as well as other alleged retaliatory conduct. Harrison is instructive on this issue. In that case, the plaintiff had won one lawsuit against the employer, had filed four charges of discrimination with the EEOC, and had written a memorandum complaining of his harassment to the harassing supervisor and the department head. Harrison, 80 F.3d at 1118. In Harrison, the plaintiff was suspended in August 1991; the plaintiff filed an EEOC complaint after his suspension and was thereafter discharged in November 1992. Id. This Court held that temporal proximity in combination with the evidence of retaliatory conduct was sufficient to establish a causal connection between the protected activity and the adverse employment action. The Court noted, [a]t most, one year and three months elapsed between his" }, { "docid": "14984512", "title": "", "text": "this circuit cautions about the permissibility of drawing an inference of causation from temporal proximity alone. See, e.g., Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir.2007) (“The law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim.”); Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737 (6th Cir.2006) (“Although temporal proximity itself is insufficient to find a causal connection, a temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding of a causal connection.”); Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cm.1986) (“The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference [sic] of retaliation.”). In applying employment discrimination statutes, however, we have accepted temporal proximity as a valid basis from which to draw an inference of retaliatory motivation under limited circumstances. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524-25 (6th Cir.2008). Specifically, the more time that elapses between the protected activity and the adverse employment action, the more the plaintiff must supplement his claim with “other evidence of retaliatory conduct to establish causality.” Id. In Mickey, the case for inferring causation from temporal proximity was very strong, because Mickey’s employer fired him the very day he learned of Mickey’s charge with the Equal Employment Opportunity Commission (“EEOC”). Id. We wrote that Mickey’s case exemplified the original justification behind using temporal proximity to infer causal motivation: “[I]f an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation.” Id. (emphasis added). And we noted that evidence in addition to that of temporal proximity buttressed Mickey’s argument in opposition to summary judgment. Id. at 526. In analyzing the facts in temporal proximity eases, we have always looked at the totality of the circumstances to determine whether an" }, { "docid": "14984514", "title": "", "text": "inference of retaliatory motive could be drawn. At this point, our case law can fairly be characterized as recognizing the possibility that, on a particular set of facts, extremely close temporal proximity could permit an inference of retaliatory motive, but also recognizing that often evidence in addition to temporal proximity is required to permit the inference. See Randolph, 453 F.3d at 737 (finding a four-month gap between protected action and termination to be insufficient on its own, but finding causation where temporal proximity was accompanied by indicia of retaliatory conduct); Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999) (“The causal connection between the adverse employment action and the protected activity ... may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the complaint and by showing that he was treated differently from other employees.”). Indeed, we have rarely found a retaliatory motive based only on temporal proximity. Even in Mickey, where we articulated the principle that temporal proximity could hypothetically be sufficient in a given case, we noted the presence of additional evidence. Unlike Mickey, who presented rather strong evidence of temporal proximity, Vereecke has shown little more than coincidence, which is insufficient on its own to show causation. First, the decision to remove him as athletic coordinator was made nearly eight months after the underlying lawsuit was served on the defendants. See Nguyen v. City of Cleveland, 229 F.3d 559, 566-67 (6th Cir.2000) (“[Pjrevious cases that have permitted a prima facie case to be made based on the proximity of time have all been short periods of time, usually less than six months.” (quoting Parnell v. West, No. 95-2131, 1997 WL 271751, at *3 (6th Cir.1997))). Second, Vereecke’s bad behavior served as strong motivation for the November 2006 and March 2007 letters of reprimand. The absence of close temporal proximity and the presence of an obviously nonretaliatory basis for the defendants’ decision amount to insufficient evidence to permit an inference of retaliatory motive. In addition to Mickey, Vereecke cites several other cases discussing temporal proximity in an attempt" }, { "docid": "23288159", "title": "", "text": "“[t]he causal connection between the adverse employment action and the protected activity, here the filing of a complaint with the EEOC, may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the complaint and by showing that he was treated differently from other employees.” Id. The Court further reasoned that, [t]he proximity in time between the increased isolation and the filing of the EEOC complaint allows an inference by the jury that the isolation was in retaliation for undertaking the protected activity of filing the complaint. Other incidents that occurred after plaintiff filed the EEOC complaint were related to the jury by plaintiff and others. These include more frequent disciplinary write-ups of plaintiff for trivial matters and unwarranted criticism of plaintiffs work. When viewed as a whole these separate incidents support the jury’s finding that defendants retaliated against plaintiff. Id. (citation omitted). In the case at bar, as in Moore and Harrison, Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to whether Plaintiffs suspension and termination was prompted by the filing of his two previous EEOC complaints. Plaintiff was terminated less than a year after the first complaint was filed and about three months after the filing of his second EEOC complaint. In addition to the temporal proximity between the filing of the complaints and Plaintiffs suspension and termination, there is additional evidence suggesting that Plaintiff was a target of retaliation. Plaintiff presented the affidavit of his fellow employee, Shields, that recounted meetings where she and other workers were told to make false claims of theft and harassment against Plaintiff or lose their jobs. The record indicates that Plaintiff was disciplined on several occasions. Plaintiff also presented evidence tending to show that he was disciplined, in fact suspended and later terminated, for not wearing his uniform pants while other workers were not so disciplined. In his third EEOC complaint, the catalyst for the instant lawsuit, Plaintiff stated that “just before I was sent home on suspension Richard [Bruzina], the station manager heard me call the EEOC investigator on my" }, { "docid": "11754578", "title": "", "text": "motion for JMOL as to Tuttle’s retaliation claim was that she failed to submit evidence on the element that there was a causal connection between her filing of an .EEOC charge against Metro on December 6, 2001 and her termination, which took effect on March 4, 2002. The law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim. Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir.2001); Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.2000). There are, however, circumstances where temporal proximity, considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection. See, e.g., Moore v. KUKA Welding Sys., 171 F.3d 1073 (6th Cir.1999). In Moore, we determined that “[t]he causal connection between the adverse employment action and the protected activity, here the filing of a complaint with the EEOC, may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the complaint and by showing that he was treated differently from other employees.” 171 F.3d at 1080. In this case, it is undisputed that Metro terminated Tuttle’s employment less than three months after she filed an EEOC complaint against it. Tuttle also testified that on December 19, 2001, Walker, one of Metro’s human resources managers, visited her at the scale house booth and threatened her that he was going either to demote her or to cut her wages if she did not transfer voluntarily into another Metro department, which Tuttle viewed as a reaction to her EEOC complaint. Following the logic of Moore, we conclude that, in light of the close proximity of time between Tuttle’s first EEOC filing and her subsequent termination and Tuttle’s trial testimony about Walker’s verbal threats on December 19, 2001, Tuttle presented sufficient evidence to support a jury’s finding that her EEOC complaint against Metro caused her termination. B. Jury Instructions Having found that the district court erred when it granted Metro’s motion for JMOL, we next address Tuttle’s appeal and Metro’s cross-appeal relative to the jury instructions, that" }, { "docid": "14984513", "title": "", "text": "that elapses between the protected activity and the adverse employment action, the more the plaintiff must supplement his claim with “other evidence of retaliatory conduct to establish causality.” Id. In Mickey, the case for inferring causation from temporal proximity was very strong, because Mickey’s employer fired him the very day he learned of Mickey’s charge with the Equal Employment Opportunity Commission (“EEOC”). Id. We wrote that Mickey’s case exemplified the original justification behind using temporal proximity to infer causal motivation: “[I]f an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation.” Id. (emphasis added). And we noted that evidence in addition to that of temporal proximity buttressed Mickey’s argument in opposition to summary judgment. Id. at 526. In analyzing the facts in temporal proximity eases, we have always looked at the totality of the circumstances to determine whether an inference of retaliatory motive could be drawn. At this point, our case law can fairly be characterized as recognizing the possibility that, on a particular set of facts, extremely close temporal proximity could permit an inference of retaliatory motive, but also recognizing that often evidence in addition to temporal proximity is required to permit the inference. See Randolph, 453 F.3d at 737 (finding a four-month gap between protected action and termination to be insufficient on its own, but finding causation where temporal proximity was accompanied by indicia of retaliatory conduct); Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999) (“The causal connection between the adverse employment action and the protected activity ... may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the complaint and by showing that he was treated differently from other employees.”). Indeed, we have rarely found a retaliatory motive based only on temporal proximity. Even in Mickey, where we articulated the principle that temporal proximity could hypothetically be sufficient in a" }, { "docid": "12026092", "title": "", "text": "permits an inference of retaliation, the majority again ignores a crucial fact — the alleged “heightened scrutiny” began after Hamilton returned from the thirty-day unpaid suspension coinciding with the filing of his discrimination charge. Surely an employer may more closely observe an employee who is returning from sanction, particularly one like Hamilton, who was working under a Last Chance Agreement and had been suspended and terminated in the past. Indeed, Hamilton identifies no other similarly situated, non-complaining employee whom GE treated differently. See Evans v. Prospect Airport Servs., Inc., 286 Fed.Appx. 889, 895 (6th Cir.2008) (unpublished) (stating that “[b]eyond temporal proximity, other indicia of retaliatory conduct would include evidence that the plaintiff was treated differently ... than similarly situated employees who had not exercised Title VII rights ....”) (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999)). The Kentucky legislature certainly did not intend the anti-retaliation provision of the Kentucky Civil Rights Act to preclude employers from supervising their employees, particularly insubordinate ones. The majority’s holding merely encourages sanctioned employees like Hamilton to file discrimination charges, thereby obtaining “instant immunity” from their employers’ supervision and punishment. Contrary to the majority’s sweeping construction of the anti-retaliation provision, the statute is designed to prevent employers from taking adverse action against employees who engage in protected conduct, not to function as a blindfold or “gag order” on an employer’s ability to properly supervise its employees, particularly employees who have decisively demonstrated that they require closer supervision. Under these facts, no reasonable jury could find that Hamilton met his burden of establishing a prima facie case for retaliation, and I respectfully dissent from the majority’s ruling that he did. V. Next, assuming that Hamilton met his burden of establishing a prima facie case for retaliation, it was also his burden to demonstrate that GE’s articulated legitimate, non-retaliatory reasons for terminating him were pretexts for retaliation. Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir.2008). The majority correctly assumes that GE’s explanations for firing Hamilton- — his persistent failure to abide by its rules of conduct and" }, { "docid": "23288160", "title": "", "text": "and termination was prompted by the filing of his two previous EEOC complaints. Plaintiff was terminated less than a year after the first complaint was filed and about three months after the filing of his second EEOC complaint. In addition to the temporal proximity between the filing of the complaints and Plaintiffs suspension and termination, there is additional evidence suggesting that Plaintiff was a target of retaliation. Plaintiff presented the affidavit of his fellow employee, Shields, that recounted meetings where she and other workers were told to make false claims of theft and harassment against Plaintiff or lose their jobs. The record indicates that Plaintiff was disciplined on several occasions. Plaintiff also presented evidence tending to show that he was disciplined, in fact suspended and later terminated, for not wearing his uniform pants while other workers were not so disciplined. In his third EEOC complaint, the catalyst for the instant lawsuit, Plaintiff stated that “just before I was sent home on suspension Richard [Bruzina], the station manager heard me call the EEOC investigator on my case to tell her I being [sic] disciplined for having on the wrong pants when no one else dressed like me was being written up.” (J.A. at 108.) From these facts, a reasonable jury could infer that Plaintiffs filing of the EEOC complaint prompted Defendant to discipline Plaintiff for conduct which might not normally warrant disciplinary action, or at least to the extent of the disciplinary action Plaintiff suffered, including Plaintiffs suspension and termination. Following the logic of Harrison and Moore, the temporal proximity, when considered with the other evidence of retaliatory conduct, is sufficient to create a genuine issue of material as to whether Plaintiff was suspended and later terminated because he filed two EEOC complaints and complained of racially discrimi natory treatment. Therefore, Plaintiffs Title VII retaliation claim should have survived summary judgment. CONCLUSION Accordingly, we AFFIRM the district court’s order insofar as it granted summary judgment to Defendant Bruzina. However, we REVERSE the district court’s grant of summary judgment to Defendant BP on Plaintiffs retaliation claim. This case is REMANDED for further" }, { "docid": "11754577", "title": "", "text": "Verdict on her Retaliation Claim To establish a prima facie claim of retaliation, a plaintiff must show that: (1) she engaged in a protected activity; (2) this exercise of protected rights was known to the defendant; (3) the defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (citations omitted). If and when a plaintiff has established a prima facie case, the burden of production of evidence shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Id. at 793 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The plaintiff then must demonstrate that “the proffered reason was not the true reason for the employment decision.” Id. (citation omitted). The only argument Metro raised during the trial in its oral motion for JMOL as to Tuttle’s retaliation claim was that she failed to submit evidence on the element that there was a causal connection between her filing of an .EEOC charge against Metro on December 6, 2001 and her termination, which took effect on March 4, 2002. The law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim. Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir.2001); Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.2000). There are, however, circumstances where temporal proximity, considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection. See, e.g., Moore v. KUKA Welding Sys., 171 F.3d 1073 (6th Cir.1999). In Moore, we determined that “[t]he causal connection between the adverse employment action and the protected activity, here the filing of a complaint with the EEOC, may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the complaint and by showing that he was treated" }, { "docid": "22818386", "title": "", "text": "(4) that there was a causal connection between the protected activity and the adverse employment action.” Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 381 (6th Cir.2002) (citing Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir.1991)). “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). The parties dispute only whether Mickey established the fourth element of his retaliation claim, a causal connection between his EEOC charge of discrimination filed on October 7, 2004, and his termination on October 19, 2004, the day that DeForge and Zeidler learned of Mickey’s charge. The district court, relying on the proposition “that temporal proximity, standing alone, is not enough to allow a reasonable juror to conclude that [Zeidler] would not have laid off [Mickey] ‘but for’ his filing the EEOC charge,” concluded that Mickey had not met his burden. (JA 203.) We disagree. Although recent case law presents as settled the proposition that temporal proximity alone may not establish a causal connection, see, e.g., Tuttle, 474 F.3d at 321 (“The law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim.”), this issue deserves greater attention. The Court in Tuttle cited Nguyen to support its assertion that temporal proximity alone is not enough to establish causation, id., but Nguyen made no such holding. See also Dixon v. Gonzales, 481 F.3d 324, 333-34 (6th Cir.2007) (citing Nguyen for the same holding); Randolph v. Ohio Dept. of Youth Serv., 453 F.3d 724, 737 (6th Cir.2006) (same); Little v. BP Exploration & Oil Co., 265 F.3d 357, 364 (6th Cir.2001) (same). Nguyen noted that “while there may be circumstances where evidence of temporal proximity alone would be sufficient to support [the] inference [of retaliatory discrimination], we do not hesitate to say that they have not been presented in this case.” 229 F.3d at 567 (emphasis added). Although Nguyen did however note that other earlier cases could be read as having “rejected the proposition" }, { "docid": "23642285", "title": "", "text": "finding that Defendant terminated his employment in retaliation for his complaints of age discrimination. Accordingly, we “cannot simply hold that [Plaintiffs] failure to provide evidence of an essential element of [his] prima facie case is dispositive.” See Tisdale, 415 F.3d at 529. Moreover, as discussed below, we conclude that Plaintiff produced evidence of a causal connection. Defendant contends that Plaintiffs discharge was undeniably caused by his failure to attain RFT status, as evidenced, argues Defendant, by the uniform enforcement of and testimony about the company’s 12-month rule. To establish a causal connection, Plaintiff must “proffer evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir.2009) (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997)) (internal quotation marks omitted). Closeness in time is one indicator of a causal connection, see Little v. BP Exploration & Oil Co., 265 F.3d 357, 364-65 (6th Cir.2001), but temporal proximity, standing alone, is not enough to establish a causal connection for a retaliation claim. Tuttle, 474 F.3d at 321. Nonetheless, there are circumstances in which temporal proximity, when combined with other evidence of retaliatory conduct, is enough to establish a causal connection, such as when the plaintiff can “show[ ] that he was treated differently from other employees.” Id. (quoting Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir.1999)) (internal quotation marks omitted). In evaluating Plaintiffs rebuttal evidence, we must decide whether, when viewing the facts in the light most favorable to Plaintiff, Plaintiff produced sufficient evidence for a reasonable jury to find that Defendant’s explanation for terminating Plaintiffs employment was pretextual, and that he was actually terminated because of his complaint of age discrimination. This involves a two-part showing, requiring a reasonable disbelief of Defendant’s proffered reason and circumstantial evidence that retaliation more likely than not motivated Defendant to terminate Plaintiffs employment. See Imwalle, 515 F.3d at 547. Defendant claims that pursuant to its 12-month rule, any seasonal employee who failed to make RFT status would be discharged after 12" }, { "docid": "22818387", "title": "", "text": "temporal proximity alone may not establish a causal connection, see, e.g., Tuttle, 474 F.3d at 321 (“The law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim.”), this issue deserves greater attention. The Court in Tuttle cited Nguyen to support its assertion that temporal proximity alone is not enough to establish causation, id., but Nguyen made no such holding. See also Dixon v. Gonzales, 481 F.3d 324, 333-34 (6th Cir.2007) (citing Nguyen for the same holding); Randolph v. Ohio Dept. of Youth Serv., 453 F.3d 724, 737 (6th Cir.2006) (same); Little v. BP Exploration & Oil Co., 265 F.3d 357, 364 (6th Cir.2001) (same). Nguyen noted that “while there may be circumstances where evidence of temporal proximity alone would be sufficient to support [the] inference [of retaliatory discrimination], we do not hesitate to say that they have not been presented in this case.” 229 F.3d at 567 (emphasis added). Although Nguyen did however note that other earlier cases could be read as having “rejected the proposition that temporal proximity is enough,” id. at 566 (citing Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir.1986)), Nguyen reads these cases expansively, and none squarely stands for the proposition that temporal proximity alone may never show a causal connection. In Cooper, for example, this court simply stated that “[t]he mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference [sic] of retaliation.” 795 F.2d at 1272. That language does not preclude plaintiffs from ever using a temporal proximity closer than four months to establish an inference of retaliation. After Nguyen, other cases confronting this issue have often included statements similar to Nguyen’s, suggestion that in some circumstances “temporal proximity alone would be sufficient.” 229 F.3d at 567. For instance, in DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir.2004), this Court stated that “this Circuit has embraced the premise that in certain distinct cases where the temporal proximity between the protected activity and the adverse employment action is acutely near in time," }, { "docid": "12026091", "title": "", "text": "(holding that the plaintiff failed to establish the causation element of the prima facie case for retaliation where his employer informed him that it was dissatisfied with his performance and verbally counseled him about his failure to perform required job duties before he complained about alleged discrimination). IV. The majority also incorrectly relies on GE’s alleged “heightened scrutiny” of Hamilton after he complained as establishing the causation element. GE was entitled to heavily scrutinize and discipline Hamilton, an employee with a history of insubordination. Cf. Conley v. City of Findlay, 266 Fed.Appx. 400, 409-10 (6th Cir.2008) (unpublished) (affirming district court’s grant of summary judgment in favor of the employer where the plaintiffs “entire retaliation argument is dedicated to challenging the district court’s conclu sion that an employer may discipline an employee that it views as being more culpable in a harsher manner than it disciplines an employee that it deems to be less culpable.”). Moreover, contrary to the majority’s observation that “[t]he fact that the scrutiny increased [after Hamilton filed the charge] is critical” and permits an inference of retaliation, the majority again ignores a crucial fact — the alleged “heightened scrutiny” began after Hamilton returned from the thirty-day unpaid suspension coinciding with the filing of his discrimination charge. Surely an employer may more closely observe an employee who is returning from sanction, particularly one like Hamilton, who was working under a Last Chance Agreement and had been suspended and terminated in the past. Indeed, Hamilton identifies no other similarly situated, non-complaining employee whom GE treated differently. See Evans v. Prospect Airport Servs., Inc., 286 Fed.Appx. 889, 895 (6th Cir.2008) (unpublished) (stating that “[b]eyond temporal proximity, other indicia of retaliatory conduct would include evidence that the plaintiff was treated differently ... than similarly situated employees who had not exercised Title VII rights ....”) (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999)). The Kentucky legislature certainly did not intend the anti-retaliation provision of the Kentucky Civil Rights Act to preclude employers from supervising their employees, particularly insubordinate ones. The majority’s holding merely encourages sanctioned" } ]

[ { "docid": "11262175", "title": "", "text": "statements pertained to a material matter; and (5) an injunction is necessary to prevent recurrence of this conduct. United States v. Estate Preservation Servs., 202 F.3d 1093, 1098 (9th Cir.2000); Gleason, 432 F.3d at 682. The Court will address each element seriatim. a. Whether Defendants Organized or Sold, or Participated in the Organization or Sale of, an Entity, Plan, or Arrangement Under § 6700, “any ‘plan or arrangement’ having some connection to taxes can serve as a ‘tax shelter’ and will be an ‘abusive’ tax shelter if the defendant makes the requisite false or fraudulent statements concerning the tax benefits.” United States v. Raymond, 228 F.3d 804, 811 (7th Cir.2000). In Raymond, the Seventh Circuit found that “the definition of a tax shelter in § 6700 is ‘clearly broad enough to include a tax protester group.’ ” Id. (quoting United States v. Kaun, 827 F.2d 1144, 1147 (7th Cir.1987)). The facts in the Raymond case are quite similar to the present one. Raymond and Bernhoft [were] active members of the U.S. Taxpayers Party and were the chief participants in a business known as Morningstar Consultants (“Morningstar”). Between January and June of 1996, Morningstar ran a weekly advertisement in a local Wisconsin newspaper under the caption “Just Say No.” The Just Say No advertisement contained the following statements: 1) “Federal, State & Social Security Taxes are Voluntary;” and 2) “The Internal Revenue Service has no Statutory Authority to: Compel you to file a Tax Return, Require withholding from your paycheck, Levy or Lien your property, Audit your Books & Records.” This advertisement was part of an effort by Morningstar to market the “De-Taxing America Program” (the “Program”). The Program consists of three volumes of materials. These materials contain information presenting the view that, among other things, the federal income tax is unconstitutional and that persons who are not federal employees or residents of the District of Columbia are not legally required to pay federal income tax. In addition to providing information regarding general tax-protest principles, the Program includes several forms and instructions to guide the purchaser through the process of “de-tax-ing.”" } ]

[ { "docid": "15458034", "title": "", "text": "is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (citing Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)). . We are mindful generally of the \"difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have also noted that \"often, speech consists of complex mixtures of commercial and noncommercial elements.” In re Orthopedic Bone Screw, 193 F.3d at 793 (quoting Bolger, 463 U.S. at 81, 103 S.Ct. 2875 (Stevens, J. concurring)). No such complex mixture exists here. Customers paid Bell for his advice and services in preparing fraudulent tax returns, not for his colorful views on the tax code. . In choosing to tailor its injunction using Brandenburg’s incitement language to restrict the non-commercial elements of -.Bell’s speech, the District Court cited United States v. Raymond, 228 F.3d 804 (7th Cir.2000), and United States v. Kaun, 827 F.2d 1144 (7th Cir.1987). See Bell, 238 F.Supp.2d at 704. Unlike Raymond, the injunction in Kaun was not modeled on Brandenburg’s incitement language, but rather barred the defendant from aiding and abetting violations of the tax code. Compare Kaun, 827 F.2d at 1146 n. 1 with Raymond, 228 F.3d at 815 n. 7. (\"[T]he words ... in the Kaun injunction ... have been replaced by the words ‘Inciting other individuals and entities to understate their federal tax liability, avoid the filing of federal tax returns, or avoid paying federal taxes[.]’ ”). . Courts have differed on whether Brandenburg protects forms of expression other than advocacy in cases alleging incitement of violence. Most courts \"have generally demanded that all expression, advocacy or not, meet the Brandenburg test before its regulation for its tendency to incite violence is permitted.\" James v. Meow Media, Inc., 300 F.3d" }, { "docid": "3887237", "title": "", "text": "2d Sess. 277, reprinted in 1982 U.S.Code Cong. & Admin.News 781, 1028, and that Congress knew that “[m]any of these protestors [were] induced to file protest returns through the criminal conduct of others,” id. at 1024. The simultaneous enactment of these two new provisions might indicate that Congress conceived of tax shelters and tax protester groups as two separate problems, and intended that they be addressed in different ways. This distinction, moreover, is supported by the case law. We have found only one other case in which § 6700 was used to prosecute a tax protester: United States v. White, 769 F.2d 511 (8th Cir.1985). In contrast, there have been hundreds of proceedings against tax protesters and their aiders and abetters brought under § 6702. See, e.g., Coleman v. C.I.R., 791 F.2d 68 (7th Cir.1986) (collecting cases). However, under the broad language of § 6700, there is nothing to prevent a tax protest group from qualifying as an “abusive tax shelter.” It is a familiar rule of statutory construction that, in the absence of clear legislative intent to the contrary, the language of a statute determines its meaning. See Consumer Product Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The words “any other plan or arrangement” are clearly broad enough to include a tax protester group. Moreover, the fact that Congress designed § 6702 to reach tax protesters does not mean that § 6702 was intended to be the exclusive remedy against tax protester conduct. In the absence of compelling evidence that § 6700 was not intended to apply to tax protesters, we conclude that a tax protester group may constitute an abusive tax shelter for purposes of § 6700. See White, 769 F.2d at 515. The district court, therefore, had authority under § 7408 to grant an injunction against Kaun. IV. The next question is our standard for reviewing injunctions issued under § 7408. “In an action for a statutory injunction, once a violation has been demonstrated, the moving party need only show that there is a reasonable likelihood of" }, { "docid": "8814452", "title": "", "text": "appellants have waived their right to appeal, and we now address the merits of that appeal. C. Summary Judgment The district court granted summary judgment for the Government and entered a permanent injunction against the appellants forbidding them from engaging in certain activities that incited others to violate the tax laws. We review the district court’s decision to grant summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only if there is no genuine dispute of material fact and judgment is appropriate as a matter of law. Fed.R.Civ.P. 56(c); see Doe v. Cunningham, 30 F.3d 879, 882 (7th Cir.1994). The district court entered this injunction under 26 U.S.C. § 7408. Section 7408 grants a district court the authority to enter a permanent injunction against a defendant if it finds “(1) that the person has engaged in any conduct subject to penalty under section 6700 ...and (2) that injunctive relief is appropriate to prevent recurrence of such conduct.” 26 U.S.C. § 7408(b); United States v. Kaun, 827 F.2d 1144, 1147 (7th Cir.1987). The appellants argue that there is a genuine issue of material fact as to whether the Government proved each of these elements and that, therefore, the district court erred in entering summary judgment for the Government. 1. Violation of 26 U.S.C. § 6700 In order to establish a violation of 26 U.S.C. § 6700, the Government must prove “(1) that the defendant was involved in an abusive tax shelter, and (2) that the defendant made statements about the tax benefits investors would receive if they participated in the shelter which the defendant knew or had reason to know were false or fraudulent.” Kaun, 827 F.2d at 1147. a. Tax shelter Under § 6700 any “plan or arrangement” having some connection to taxes can serve as a “tax shelter” and will be an “abusive” tax shelter if the defendant makes the requisite false or fraudulent statements concerning the tax benefits of participation. See 26" }, { "docid": "8814454", "title": "", "text": "U.S.C. § 6700(a)(1)(A); Kaun, 827 F.2d at 1147. In United States v. Kaun, we held that the definition of a tax shelter in § 6700 is “clearly broad enough to include a tax protester group.” Kaun, 827 F.2d at 1148. In that case, we concluded that the Wisconsin Society for Educated Citizens (“WSEC”), an organization whose primary purpose was to incite members to evade the tax laws by engaging in a variety of activity disruptive to the IRS including the filing of false or fraudulent returns, was a plan or arrangement that operated as an abusive tax shelter as defined by § 6700. Id. at 1149. In this case, the appellants participated in Morningstar Consultants in order to promote and sell the De-Taxing America Program. The Program purported to provide step-by-step instructions for “removing” the purchaser from the federal income and social security tax systems. The Program materials assured readers that the federal government is without authority to tax them and that by following the instructions outlined in the Program individuals can legally refuse to pay federal income and social security tax. Several of Morn-ingstar’s customers took steps to evade the federal tax laws and filed false or fraudulent income tax returns relying on the instructions and assertions made in the Program materials. As with the WSEC in Kaun, we conclude that the Program is a tax shelter as defined by § 6700 and that the appellants’ sale of the Program to over 55 customers in several states through the business known as Morningstar Consultants is the sale of an interest in a plan that constitutes a tax shelter as defined by § 6700(a)(1)(B). b. False statements concerning tax benefits In order to prove a violation of § 6700, the Government must also show that the appellants made false or fraudulent statements concerning the tax benefits of participating in the plan or arrangement. 26 U.S.C. § 6700(a)(2)(A); Kaun, 827 F.2d at 1147. In Kaun, the defendant held WSEC meetings where he encouraged members and potential members to file frivolous FOIA requests, request that their employers forego withholding federal taxes from" }, { "docid": "8814475", "title": "", "text": "evidentiary materials.”); Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1392 n. 4 (7th Cir.1990) (noting that references to facts outside the record are properly stricken). Therefore, we will grant the appellants' motion to strike these documents from the Government’s appendix and references to these documents in the Government’s brief. However, we cannot conclude that the Government's conduct here merits sanctions. Therefore, we deny the appellants' motion for an order to show cause why the government should not be sanctioned. . Section 6700 of Title 26 of the United States Code provides monetary penalties for: (a) ... — Any person who— (1)(A) organizes (or assists in the organization of)— (i) a partnership or other entity, (ii) any investment plan or arrangement, or (iii) any other plan or arrangement, or (B) participates (directly or indirectly) in the sale of any interest in an entity or plan or arrangement referred to in subparagraph (A), and (2) makes or furnishes or causes another person to make or furnish (in connection with such organization or sale)— (A) a statement with respect to the allow-ability of any deduction or credit, the excludability of any income, or the securing of any other tax benefit by reason of holding an interest in the entity or participating in the plan or arrangement which the person knows or has reason to know is false or fraudulent as to any material matter.... . The injunctions are identical with the following exceptions: In the first paragraph the words \"Organizing, selling, or assisting in the organization of an entity or otherwise promoting any plan or arrangement based upon ...” in the Kaun injunction, see 827 F.2d at 1146 n. 1, have been replaced by the words \"Inciting other individuals and entities to understate their federal tax liability, avoid the filing of federal tax return, or avoid paying federal taxes based upon....” The fifth paragraph of the Kaun injunction regarding the filing of frivolous lawsuits has been omitted and the sixth paragraph of the Kaun injunction is re-numbered as the fifth paragraph of the instant injunction." }, { "docid": "3307077", "title": "", "text": "that defendant either knows or has reason to know that she is making false statements. I rely on the fact that the defendant has been completely uncooperative with plaintiffs counsel in refusing to answer questions, or respond to discovery. I also note defendant’s persistent use of disruptive tactics throughout this lawsuit. Finally, I find that defendant’s false statements pertain to material matters. Defendant’s statements relate directly to the exclusion of income from federal taxation. These statements are material under IRC § 6700. In conclusion, I find that defendant is violating IRC § 6700 and therefore injunctive relief is appropriate pursuant to IRC § 7408. Injunctive relief is appropriate if the defendant is reasonably likely to violate § 6700 again. See United States v. Kaun, 827 F.2d 1144, 1150 (7th Cir.1987) (district court did not abuse its discretion “in finding that Kaun was reasonably likely to violate § 6700 again”). Courts re view the following five factors to make this determination: (1) the gravity of harm caused by the offense; (2) the extent of the defendant’s participation, and her degree of scienter; (3) the isolated or recurrent nature of the infraction and the likelihood that the defendant’s customary business activities might again involve her in such transaction; (4) the defendant’s recognition of her own culpability; and (5) the sincerity of her assurances against future violations. United States v. Raymond 228 F.3d 804, 813 (7th Cir.2000), cert. denied, 533 U.S. 902, 121 S.Ct. 2242, 150 L.Ed.2d 230 (2001). I find that all five factors weigh in favor of entering the injunction. First, defendant’s activities will cause harm to the United States Treasury. Even assuming the government can identify all of defendant’s clients, it has stated that it cannot realistically hope to collect all of the back taxes, penalties and interest owed the government. Further, the government will be required to pay a substantial amount to identify, audit and collect the taxes defendant has assisted her customers to evade. The government has stated that these additional sums will “probably never be recovered.” Second, defendant has reason to know that her activities are illegal." }, { "docid": "3887236", "title": "", "text": "if they participated in the shelter which the defendant knew or had reason to know were false or fraudulent. We conclude that Kaun’s tax protest activities fell within the scope of § 6700. TEFRA defines an abusive tax shelter as a partnership or other entity, any investment plan or arrangement, or any other plan or arrangement, whose “principal purpose ... is the avoidance or evasion of federal income tax.” I.R.C. § 6661(b)(2)(C)(ii) (1982 & Supp.1985). The government argues that under this broad definition the WSEC can be considered a tax avoidance scheme within the meaning of § 6700, and that Kaun is therefore liable as a promoter of the scheme. Congress may have envisioned a different strategy for enforcing the revenue laws against tax protesters. At the same time that Congress enacted § 6700, it enacted § 6702, which provides a penalty for “frivolous returns.” The legislative history of § 6702 indicates that Congress was concerned with “the rapid growth in deliberate defiance of the tax laws by tax protestors,” S.Rep. No. 97-494, 97th Cong., 2d Sess. 277, reprinted in 1982 U.S.Code Cong. & Admin.News 781, 1028, and that Congress knew that “[m]any of these protestors [were] induced to file protest returns through the criminal conduct of others,” id. at 1024. The simultaneous enactment of these two new provisions might indicate that Congress conceived of tax shelters and tax protester groups as two separate problems, and intended that they be addressed in different ways. This distinction, moreover, is supported by the case law. We have found only one other case in which § 6700 was used to prosecute a tax protester: United States v. White, 769 F.2d 511 (8th Cir.1985). In contrast, there have been hundreds of proceedings against tax protesters and their aiders and abetters brought under § 6702. See, e.g., Coleman v. C.I.R., 791 F.2d 68 (7th Cir.1986) (collecting cases). However, under the broad language of § 6700, there is nothing to prevent a tax protest group from qualifying as an “abusive tax shelter.” It is a familiar rule of statutory construction that, in the absence of clear" }, { "docid": "8814455", "title": "", "text": "pay federal income and social security tax. Several of Morn-ingstar’s customers took steps to evade the federal tax laws and filed false or fraudulent income tax returns relying on the instructions and assertions made in the Program materials. As with the WSEC in Kaun, we conclude that the Program is a tax shelter as defined by § 6700 and that the appellants’ sale of the Program to over 55 customers in several states through the business known as Morningstar Consultants is the sale of an interest in a plan that constitutes a tax shelter as defined by § 6700(a)(1)(B). b. False statements concerning tax benefits In order to prove a violation of § 6700, the Government must also show that the appellants made false or fraudulent statements concerning the tax benefits of participating in the plan or arrangement. 26 U.S.C. § 6700(a)(2)(A); Kaun, 827 F.2d at 1147. In Kaun, the defendant held WSEC meetings where he encouraged members and potential members to file frivolous FOIA requests, request that their employers forego withholding federal taxes from their paychecks, file false tax returns, and file fraudulent requests for tax refunds. Id. at 1149. We held that this activity was sufficient to satisfy the false or fraudulent statements element of § 6700. In this case, there is a disputed question of fact concerning whether the appellants held meetings where they made statements to Program customers and potential customers that encouraged them to evade federal tax laws. However, it is undisputed that from January through June of 1996, the appellants ran the “Just Say No” advertisement in a local Wisconsin paper in an effort to induce potential customers to purchase the De-Taxing America Program. In that advertisement, the appellants made the representations that payment of income tax is a voluntary activity and that individuals cannot be legally compelled to file tax returns or submit to tax investigations or penalties. The advertisement directed readers to contact Morn-ingstar Consultants “for more information” regarding these assertions. Upon contacting Morningstar, callers were encouraged to purchase the De-Taxing America Program, and several individuals in fact purchased the Program from" }, { "docid": "15458035", "title": "", "text": "using Brandenburg’s incitement language to restrict the non-commercial elements of -.Bell’s speech, the District Court cited United States v. Raymond, 228 F.3d 804 (7th Cir.2000), and United States v. Kaun, 827 F.2d 1144 (7th Cir.1987). See Bell, 238 F.Supp.2d at 704. Unlike Raymond, the injunction in Kaun was not modeled on Brandenburg’s incitement language, but rather barred the defendant from aiding and abetting violations of the tax code. Compare Kaun, 827 F.2d at 1146 n. 1 with Raymond, 228 F.3d at 815 n. 7. (\"[T]he words ... in the Kaun injunction ... have been replaced by the words ‘Inciting other individuals and entities to understate their federal tax liability, avoid the filing of federal tax returns, or avoid paying federal taxes[.]’ ”). . Courts have differed on whether Brandenburg protects forms of expression other than advocacy in cases alleging incitement of violence. Most courts \"have generally demanded that all expression, advocacy or not, meet the Brandenburg test before its regulation for its tendency to incite violence is permitted.\" James v. Meow Media, Inc., 300 F.3d 683, 698-699 (6th Cir.2002) (rejecting wrongful death claim against maker of a violent video game); see also Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1199-1200 n. 8 (9th Cir.1989) (rejecting claim that pornography incites imminent lawless action against .women and holding that plaintiffs failed \"to establish the 'clear and present danger' required in order for any of the exceptions to general first amendment principles to apply”); Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1022 (5th Cir.1987) (rejecting claim that article on auto-erotic asphyxiation incited imminent lawless action and raising the question of whether written materials could ever create culpable imminent incitement under Brandenburg ).' The Court of Appeals for the Fourth Circuit has suggested Brandenburg protects only advocacy and not other forms of speech claimed to incite lawless action. See Rice v. Paladin Enters., Inc., 128 F.3d 233, 263-65 (4th Cir.1997) (holding publisher of an instruction manual on murder could be found liable for aiding and abetting the commission of a crime). The Paladin court concluded that \"to understand [Brandenburg ] as addressing" }, { "docid": "11262205", "title": "", "text": "with them are hereby permanently enjoined from directly or indirectly: 1. engaging in activity subject to penalty under 26 U.S.C. § 6700, including the organizing, selling, participation in the organization, or participation in the sale of any plan or arrangement and making a statement regarding the securing of any tax benefit that they know or have reason to know is false or fraudulent as to any material matter; 2. engaging in activity subject to penalty under § 6701, including preparing or assisting in the preparation of a document related to a matter material to the internal revenue laws that includes a position that they know will, if used, result in an understatement of tax liability; 3. promoting, marketing, organizing, selling, or receiving payment for any plan or arrangement regarding the securing of any tax benefit that they know or have reason to know is false or fraudulent as to any material matter; 4. engaging in any other activity subject to penalty under IRC §§ 6700 or 6701 or other penalty provision of the Internal Revenue Code; 5. advising or instructing persons and/or entities that they are not required to file federal tax returns or pay federal taxes; 6. selling, distributing or furnishing any document, newsletter, book, manual, videotape, audiotape, or other material purporting to enable individuals to discontinue or stop withholding, or payment of, federal taxes; 7. instructing, advising, or assisting anyone to stop withholding or paying of federal employment or income taxes; and 8. obstructing or advising or assisting anyone to obstruct IRS examinations, collections, or other IRS proceedings. b. Defendants shall, at their own expense, notify all persons who have purchased or otherwise obtained their tax plans, arrangements, and materials of this Memorandum, Decision and Order and provide them with a copy of this Memorandum, Decision and Order; c. Defendants shall produce to counsel for the United States a list identifying by name, address, e-mail address, telephone number, and Social Security number, all persons and entities who have been provided Defendants’ tax preparation materials, forms, and other materials containing false information and otherwise likely to cause others to" }, { "docid": "3887235", "title": "", "text": "against Kaun was proper under § 7408. We therefore need not consider whether the district court’s action was also proper under § 7402(a), which authorizes a district court, at the request of the United States, to issue such injunctions and other judgments and decrees “as may be necessary or appropriate for the enforcement of the internal revenue laws,” I.R.C. § 7402(a) (1982). Section 7408 authorizes the United States to seek injunctive relief against persons found to be in violation of I.R.C. § 6700. Thus, the injunction against Kaun was properly based on § 7408 if Kaun’s activities fell within the scope of § 6700. Sections 6700 and 7408 of the Internal Revenue Code were added to the Code by the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), Pub.L. No. 97-248, 96 Stat. 324. Section 6700, titled “Promoting abusive tax shelters,” contains two elements that the government must prove: (1) that the defendant was involved in an abusive tax shelter, and (2) that the defendant made statements about the tax benefits investors would receive if they participated in the shelter which the defendant knew or had reason to know were false or fraudulent. We conclude that Kaun’s tax protest activities fell within the scope of § 6700. TEFRA defines an abusive tax shelter as a partnership or other entity, any investment plan or arrangement, or any other plan or arrangement, whose “principal purpose ... is the avoidance or evasion of federal income tax.” I.R.C. § 6661(b)(2)(C)(ii) (1982 & Supp.1985). The government argues that under this broad definition the WSEC can be considered a tax avoidance scheme within the meaning of § 6700, and that Kaun is therefore liable as a promoter of the scheme. Congress may have envisioned a different strategy for enforcing the revenue laws against tax protesters. At the same time that Congress enacted § 6700, it enacted § 6702, which provides a penalty for “frivolous returns.” The legislative history of § 6702 indicates that Congress was concerned with “the rapid growth in deliberate defiance of the tax laws by tax protestors,” S.Rep. No. 97-494, 97th Cong.," }, { "docid": "3307070", "title": "", "text": "As part of her promotion of ATC’s corporation sole, defendant assists others in establishing their corporations sole. Assistance establishing this entity includes telling interested parties that a corporation sole can engage in all of the same transactions as any individual, including commercial and investment transactions. Plaintiffs Ex. B, p. 4-6. A corporation sole can be organized for social, fraternal, agricultural or recreational purposes. Id. at p. 2. A “corporation sole” is tax exempt. A corporation sole does not need to file tax returns of any kind and does not need to keep records. As long as the founder does not “draw a paycheck from their religious corporation sole,” the corporation is not obligated to follow tax-reporting requirements. A religious leader’s income from any work is tax exempt, so long as the leader’s work is “directed by his order.” Such tax exempt income can include income from working as an airline pilot or a “bank loan officer.” McGeachy Deck at ¶¶ n.13-16. A person may establish a corporation sole which the person controls. The person may then make “charitable contributions” to his or her own corporation sole and deduct those “contributions” on the person’s federal income tax returns. III. ANALYSIS Plaintiff asserts that defendant is violating IRS § 6700, and therefore subject to an injunction under IRC § 7408. Specifically, plaintiff alleges that defendant is selling tax plans and arrangements to assist her customers in evading federal taxes through the use of entities known as “corporations sole.” Plaintiff requests that this court enjoin defendant’s promotion of an “abusive” tax shelter. IRS § 6700 penalizes anyone who, among other things: Participates, either directly or indirectly, in the organization and/or sale of any shelter, plan, or arrangement; makes false statements about tax benefits in connection with the sale; knows or has reason to know that the statements are false; and the false statements pertain to a material matter, such as a purported tax deduction or the exclusion of income. IRC § 6700. Internal Revenue Code § 7408 provides for a “statutory injunction.” Specifically, IRC § 7408(a) provides that the court may enjoin any" }, { "docid": "3887261", "title": "", "text": "(B) participates in the sale of any interest in an entity or plan or arrangement referred to in subparagraph (A), and (2) makes or furnishes (in connection with such organization or sale)— (A) a statement with respect to the allowability of any deduction or credit, the excludability of any income, or the securing of any other tax benefit by reason of holding an interest in the entity or participating in the plan or arrangement which the person knows or has reason to know is false or fraudulent as to any material matter, or (B) a gross valuation overstatement as to any material matter, shall pay a penalty equal to the greater of 11,000 or 20 percent of the gross income derived or to be derived by such person from such activity. I.R.C. § 6700 (1982 & Supp. 1985). Section 6703(a) of the Code provides that \"[iln any proceeding involving the issue of whether or not any person is liable for a penalty under section 6700, ... the burden of proof with respect to such issue shall be on the Secretary.” I.R.C. § 6703(a) (1982). . Under Brandenburg, therefore, a person may not be prosecuted for merely advocating unlawful activity-only for speech that leads to \"imminent lawless action.\" However, the legislative history of § 6700 makes clear that in order to hold the promoter of an abusive tax shelter liable, \"[t]here need not be reliance by the purchasing taxpayer or actual underreporting of tax.” S.Rep. No. 97-494, 97th Cong., 2d Sess. 267, reprinted in 1982 U.S.Code Cong. & Admin. News 781, 1015. It is therefore possible that the broad scope of § 6700 may reach a person who merely advocates the nonpayment of taxes in general. This result would clearly run afoul of Brandenburg. However, because the evidence in this case shows that Kaun's activities did in fact lead to lawless action, we need not address this problem today. RIPPLE, Circuit Judge, concurring in the judgment. The threat posed to the efficient and fair enforcement of our revenue laws by contemporary tax protester groups is well-established. Indeed, that threat has been" }, { "docid": "11262177", "title": "", "text": "Purchasers are informed that if they complete the materials and directions in the Program they will be “withdrawn” from the jurisdiction of the federal government’s taxing authorities and the social security system and will no longer be required to pay federal taxes.... Program customers are instructed to file W-4 forms with their employers asserting that they are exempt from federal taxation and requesting that the employers stop withholding federal income tax and social security payments from their paychecks.... The Program also provides the purchaser with instructions on how to complete future tax returns to reflect that the purchaser has not incurred any tax liability in the previous year and consequently does not owe any federal income or social security taxes. Id. at 806-07. “The Program purported to provide step-by-step instructions for ‘removing’ the purchaser from the federal income and social security tax systems. The Program materials assured readers that the federal government is without authority to tax them and that by following the instructions outlined in the Program individuals can legally refuse to pay federal income and social security tax.” Id. at 811. The Seventh Circuit concluded that the program was a tax shelter. The Raymond court further found that because the defendants in that case had sold the product, it qualified as a plan within the meaning of § 6700. Here, as in Raymond, Schulz has organized the two corporate Defendants. See Def.’s Stmnt. of Mat. Facts at ¶ 1. Defendants offer materials to employees and employers stating that, among other things, Congress is without authority to legislate an income tax on people except in the District of Columbia and United States territories, the IRS is prohibited from compelling people to sign and file income tax returns, and the Sixteenth Amendment to the United States Constitution was never properly ratified and, therefore, the income tax violates the Constitution. Schulz Decl. # 1 at Ex. B. Among other things, Defendants’ materials instruct workers how to terminate their W-4 Agreement and demand that the employer discontinue making withholdings from their pay. Id. at Ex. C. In fact, Defendants provide forms for" }, { "docid": "11262179", "title": "", "text": "that very purpose. Id. Thus, the Court finds that Defendants have organized a “plan” or “arrangement.” Although there are some questions of fact concerning whether Defendants sold their materials, they clearly “organized” the materials for presentation. Defendant Schulz admits that he undertook “ ‘Operation Stop Withholding,’ a national campaign to instruct company officials, workers and independent contractors on how to legally stop wage withholding.” Schulz Decl. # 1 at ¶ 4. Defendants also offer to provide a “customized legal opinion letter from an attorney or CPA to be sent to your company or their tax and/or legal advisors.” Schulz Decl. # 1 at Ex. C, p. 11. Stated otherwise, Defendants are promoting an abusive tax shelter. Accordingly, the first element is satisfied because Defendants organized a plan or arrangement concerning the avoidance of taxes. b. Whether Defendants Made or Caused to be Made, False or Fraudulent Statements Concerning the Tax Benefits to be Derived From the Entity, Plan, or Arrangement “[T]o prove a violation of § 6700, the Government must also show that the [defendants] made false or fraudulent statements concerning the tax benefits of participating in the plan or arrangement.” Raymond, 228 F.3d at 812. “Two types of statements fall within the statutory bar: statements directly addressing the availability of tax benefits and those concerning factual matters that are relevant to the availability of tax benefits.” United States v. Campbell, 897 F.2d 1317, 1320 (5th Cir.1990). Once again, referral to Raymond is instructive. In that case, the Seventh Circuit found that the defendants’ statements that “payment of income tax is a voluntary activity and that individuals cannot be legally compelled to file tax returns or submit to tax investigations or penalties” “are clearly false representations concerning the government’s authority to tax its citizens.” Id. That court concluded that “[t]hese statements made in conjunction with the sale of the Program operated as false assurances that refusing to pay taxes in accordance with the Program’s instructions is a lawful activity for which the government has no legal authority to punish Program subscribers.” Id. Defendants’ conduct here is virtually identical to that" }, { "docid": "3887238", "title": "", "text": "legislative intent to the contrary, the language of a statute determines its meaning. See Consumer Product Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The words “any other plan or arrangement” are clearly broad enough to include a tax protester group. Moreover, the fact that Congress designed § 6702 to reach tax protesters does not mean that § 6702 was intended to be the exclusive remedy against tax protester conduct. In the absence of compelling evidence that § 6700 was not intended to apply to tax protesters, we conclude that a tax protester group may constitute an abusive tax shelter for purposes of § 6700. See White, 769 F.2d at 515. The district court, therefore, had authority under § 7408 to grant an injunction against Kaun. IV. The next question is our standard for reviewing injunctions issued under § 7408. “In an action for a statutory injunction, once a violation has been demonstrated, the moving party need only show that there is a reasonable likelihood of future violations in order to obtain relief.” S.E.C. v. Holschuh, 694 F.2d 130, 144 (7th Cir.1982) (footnote omitted). Our review of a district court’s decision to grant a permanent injunction “ ‘is limited to the determination of whether the district court abused its discretion in deciding that the circumstances of the case justified injunctive relief.’ ” Prohosky v. Prudential Ins. Co., 767 F.2d 387, 391 (7th Cir.1985) (quoting Federal S & L Ins. Corp. v. PSL Realty Co., 630 F.2d 515, 520 (7th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981)). When we review the grant or denial of a preliminary or permanent injunction, as in any other case, “the factual determinations are reviewed under a clearly erroneous standard and the necessary legal conclusions are given de novo review,” Lawson Products v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.1986). A factual or legal error may be sufficient to establish an abuse of discretion. Id.; see generally Darryl H. v. Coler, 801 F.2d 893, 898 (7th Cir.1986) (discussing the meaning" }, { "docid": "3307071", "title": "", "text": "then make “charitable contributions” to his or her own corporation sole and deduct those “contributions” on the person’s federal income tax returns. III. ANALYSIS Plaintiff asserts that defendant is violating IRS § 6700, and therefore subject to an injunction under IRC § 7408. Specifically, plaintiff alleges that defendant is selling tax plans and arrangements to assist her customers in evading federal taxes through the use of entities known as “corporations sole.” Plaintiff requests that this court enjoin defendant’s promotion of an “abusive” tax shelter. IRS § 6700 penalizes anyone who, among other things: Participates, either directly or indirectly, in the organization and/or sale of any shelter, plan, or arrangement; makes false statements about tax benefits in connection with the sale; knows or has reason to know that the statements are false; and the false statements pertain to a material matter, such as a purported tax deduction or the exclusion of income. IRC § 6700. Internal Revenue Code § 7408 provides for a “statutory injunction.” Specifically, IRC § 7408(a) provides that the court may enjoin any person from engaging in conduct subject to penalty under IRC § 6700. Conduct may be enjoined if the court finds: (1) that the person has engaged in any conduct subject to penalty under section 6700 (relating to penalty for promoting abusive tax shelters, etc.) or section 6701 (relating to penalties for aiding and abetting under-statement of tax liability), and (2) that injunctive relief is appropriate to prevent recurrence of such conduct. IRC § 7408(a). The defendant markets a scheme for ATC that claims that persons can establish corporations sole for virtually any purpose they wish — so long as the founders’ beliefs are “sincerely held.” Defendant further counsels that those persons can assign income to the corporations tax free, and can deduct payments to the corporations sole (which they own and control) on their individual income tax returns. I find that based on this description, defendant’s “corporation sole” qualifies as a plan and/or arrangement under IRC § 6700, thus meeting the first element necessary under § 6700. As for the second element, I find that" }, { "docid": "8814453", "title": "", "text": "is appropriate to prevent recurrence of such conduct.” 26 U.S.C. § 7408(b); United States v. Kaun, 827 F.2d 1144, 1147 (7th Cir.1987). The appellants argue that there is a genuine issue of material fact as to whether the Government proved each of these elements and that, therefore, the district court erred in entering summary judgment for the Government. 1. Violation of 26 U.S.C. § 6700 In order to establish a violation of 26 U.S.C. § 6700, the Government must prove “(1) that the defendant was involved in an abusive tax shelter, and (2) that the defendant made statements about the tax benefits investors would receive if they participated in the shelter which the defendant knew or had reason to know were false or fraudulent.” Kaun, 827 F.2d at 1147. a. Tax shelter Under § 6700 any “plan or arrangement” having some connection to taxes can serve as a “tax shelter” and will be an “abusive” tax shelter if the defendant makes the requisite false or fraudulent statements concerning the tax benefits of participation. See 26 U.S.C. § 6700(a)(1)(A); Kaun, 827 F.2d at 1147. In United States v. Kaun, we held that the definition of a tax shelter in § 6700 is “clearly broad enough to include a tax protester group.” Kaun, 827 F.2d at 1148. In that case, we concluded that the Wisconsin Society for Educated Citizens (“WSEC”), an organization whose primary purpose was to incite members to evade the tax laws by engaging in a variety of activity disruptive to the IRS including the filing of false or fraudulent returns, was a plan or arrangement that operated as an abusive tax shelter as defined by § 6700. Id. at 1149. In this case, the appellants participated in Morningstar Consultants in order to promote and sell the De-Taxing America Program. The Program purported to provide step-by-step instructions for “removing” the purchaser from the federal income and social security tax systems. The Program materials assured readers that the federal government is without authority to tax them and that by following the instructions outlined in the Program individuals can legally refuse to" }, { "docid": "11262180", "title": "", "text": "made false or fraudulent statements concerning the tax benefits of participating in the plan or arrangement.” Raymond, 228 F.3d at 812. “Two types of statements fall within the statutory bar: statements directly addressing the availability of tax benefits and those concerning factual matters that are relevant to the availability of tax benefits.” United States v. Campbell, 897 F.2d 1317, 1320 (5th Cir.1990). Once again, referral to Raymond is instructive. In that case, the Seventh Circuit found that the defendants’ statements that “payment of income tax is a voluntary activity and that individuals cannot be legally compelled to file tax returns or submit to tax investigations or penalties” “are clearly false representations concerning the government’s authority to tax its citizens.” Id. That court concluded that “[t]hese statements made in conjunction with the sale of the Program operated as false assurances that refusing to pay taxes in accordance with the Program’s instructions is a lawful activity for which the government has no legal authority to punish Program subscribers.” Id. Defendants’ conduct here is virtually identical to that in Raymond. Defendants make claims similar to those in Raymond. Among other things, Defendants affirmatively state that domestic income is not taxable, the filing of a tax return is voluntary, see Defs’ Mem. of Law at 10; Schulz Decl. # 1 at Ex. B, p. 14, and that the 16th Amendment was not properly ratified and, therefore, the income tax is unconstitutional. Defendants also instruct that, “[o]nce the government has been properly notified and termination of withholding has been procedurally put into effect, the [employer] has no further reporting requirements under U.S. law.” Schulz Decl. # 1 at Ex. C, p. 8. Defendants further claim that the IRS is prohibited by the Fourth and Fifth Amendments from compelling people to sign and file income tax returns. Schulz Decl. # 1 at Ex. C. Defendants also claim that they, and other taxpayers, have the right to “retain[ ] [their] money until [their] grievances are redressed (remedied).” Schulz Decl. # 1 at Ex. H, p. 2. These are all false statements of fact. See 26 U.S.C. §" }, { "docid": "11262178", "title": "", "text": "income and social security tax.” Id. at 811. The Seventh Circuit concluded that the program was a tax shelter. The Raymond court further found that because the defendants in that case had sold the product, it qualified as a plan within the meaning of § 6700. Here, as in Raymond, Schulz has organized the two corporate Defendants. See Def.’s Stmnt. of Mat. Facts at ¶ 1. Defendants offer materials to employees and employers stating that, among other things, Congress is without authority to legislate an income tax on people except in the District of Columbia and United States territories, the IRS is prohibited from compelling people to sign and file income tax returns, and the Sixteenth Amendment to the United States Constitution was never properly ratified and, therefore, the income tax violates the Constitution. Schulz Decl. # 1 at Ex. B. Among other things, Defendants’ materials instruct workers how to terminate their W-4 Agreement and demand that the employer discontinue making withholdings from their pay. Id. at Ex. C. In fact, Defendants provide forms for that very purpose. Id. Thus, the Court finds that Defendants have organized a “plan” or “arrangement.” Although there are some questions of fact concerning whether Defendants sold their materials, they clearly “organized” the materials for presentation. Defendant Schulz admits that he undertook “ ‘Operation Stop Withholding,’ a national campaign to instruct company officials, workers and independent contractors on how to legally stop wage withholding.” Schulz Decl. # 1 at ¶ 4. Defendants also offer to provide a “customized legal opinion letter from an attorney or CPA to be sent to your company or their tax and/or legal advisors.” Schulz Decl. # 1 at Ex. C, p. 11. Stated otherwise, Defendants are promoting an abusive tax shelter. Accordingly, the first element is satisfied because Defendants organized a plan or arrangement concerning the avoidance of taxes. b. Whether Defendants Made or Caused to be Made, False or Fraudulent Statements Concerning the Tax Benefits to be Derived From the Entity, Plan, or Arrangement “[T]o prove a violation of § 6700, the Government must also show that the [defendants]" } ]

[ { "docid": "22163167", "title": "", "text": "that respondent is using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs in violation of the Sherman Act. Discovery and argument in connection with defendant’s motion for summary judgment were limited by stipulation to the issue raised by the Commission’s approval of respondent’s light-bulb-exchange program. We state only the facts pertinent to that issue and assume, without opining, that without such approval an antitrust violation would exist. To the extent that the facts are disputed, we must resolve doubts in favor of the petitioner since summary judgment was entered against him. We first describe respondent’s “lamp exchange program,” we next discuss the holding in Parker v. Brown, and then we consider whether that holding should be extended to cover this case. Finally, we comment briefly on additional authorities on which respondent relies. I Respondent, the Detroit Edison Co., distributes electricity and electric light bulbs to about five million people in southeastern Michigan. In this marketing area, respondent is the sole supplier of electricity, and supplies consumers with almost 50% of the standard-size light bulbs they use most frequently. Customers are billed for the electricity they consume, but pay no separate charge for light bulbs. Respondent’s rates, including the omission of any separate charge for bulbs, have been approved by the Michigan Public Service Commission, and may not be changed without the Commission’s approval. Respondent must, therefore, con tinue its lamp-exchange program until it files a new tariff and that new tariff is approved by the Commission. Respondent, or a predecessor, has been following the practice of providing limited amounts of light bulbs to its customers without additional charge since 1886. In 1909 the State of Michigan began regulation of electric utilities. In 1916 the Michigan Public Service Commission first approved a tariff filed by respondent setting forth the lamp-supply program. Thereafter, the Commission’s approval of respondent’s tariffs has included implicit approval of the lamp-exchange program. In 1964 the Commission also approved respondent’s decision to eliminate the program for large commercial customers. The elimination of the service for such customers became effective as" } ]

[ { "docid": "3266390", "title": "", "text": "the State Commission. The Supreme Court rejected the position of the Commission. Although the retail rate is not within the jurisdiction of the FERC, there is adequate variance in the zone within which wholesale rates may be set as to enable the Commission to set a rate which would ameliorate the condition of wholesale customers subject to the price squeeze. “The Commission must arrive at a rate level deemed by it to be just and reasonable, but in so doing, it must consider the tendered allegations that the proposed rates are discriminatory and anti-competitive in effect.” Id., at 279, 96 S.Ct. at 2004. Penn Power maintains that since the FERC has jurisdiction to hear the arguments raised by plaintiffs in this action, the FERC has exclusive jurisdiction over those antitrust claims. An implied repeal of the antitrust laws is not so easily established, however. Conway is not a jurisdictional case. Further, the mere fact that FERC may consider arguments based on antitrust concepts does not preclude later antitrust review. There is no certainty that use of the limited powers of the FERC can fully remedy an antitrust violation. Mere consideration of a claim does not rise to the level of complete disposition of the underlying violation. Conway does not mandate an exemption from antitrust review under Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1974). The Gordon rule does not differ appreciably from that announced in Cantor. Exemption results only if there is a clear repugnancy between the regulatory legislation and antitrust review. Justice Douglas, in his concurring opinion writes: “The mere existence of a statutory power of review by the SEC over fixed commission rates cannot justify immunizing those rates from antitrust challenges. The antitrust laws are designed to safeguard a strong public interest in free and open competition, and immunity from those laws should properly be implied only when some equivalent mechanism is functioning to protect that public interest.” Id., at 692, 95 S.Ct. at 2616. The FERC does not provide an “equivalent mechanism” to protect public interest. The FERC cannot" }, { "docid": "843307", "title": "", "text": "Judges in the Federal Commission repeatedly have found in violation of the Federal Power Act and defendants’ public utility obligations, were not “honest industrial” practices or “economically inevitable” events. All were deliberate acts aimed at the plaintiffs, unprovoked, unjustified, and clearly avoidable. Specific intent is present in this case. III. Defendants contend that because I & M’s wholesale and retail rates result from filings before the state and federal commissions the First Amendment immunizes their rate practices from antitrust scrutiny. For support, they rely on Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed. 464 (1961) and United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The same argument was considered and rejected by the Supreme Court of the United States in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). Cantor involved an antitrust challenge to an electric utility’s practice of providing light bulbs to its customers without separate charge pursuant to a “lamp exchange program” that was incorporated in its rates on file with the Michigan Public Service Commission. The utility’s rates, including its omission of any separate charge for the bulbs, had been approved by the Commission. Thus, as the court recognized, the defendant utility was required to continue the program until it filed and obtained Commission approval for a new tariff that did not contain that program. Id. at 582-583 and at 585, 96 S.Ct. at 3114 and 3115. Not only did the court reject the contention that the Commission’s approval gave rise to a Parker v. Brown defense, it also specifically held that the Noerr-Pennington was inapplicable. As the court stated, 428 U.S. at 601-602, 96 S.Ct. at 3123: “[Njothing in the Noerr opinion implies that the mere fact that a state regulatory agency may approve a proposal included in a tariff, and thereby require that the proposal be implemented until a revised tariff is filed and approved, is a sufficient reason for conferring antitrust immunity on the proposed conduct.” The Cantor decision" }, { "docid": "7792250", "title": "", "text": "agency determines the legal rate and the utility must collect it while it is in effect. Keogh v. Chicago & Northwestern Railway, 260 U.S. at 162, 43 S.Ct. at 49. The doctrine applies to rates that have been published but not acted upon by the regulatory agency, because they are the legal rates until suspended or set aside. Id. at 163, 43 S.Ct. at 50. Otherwise unjust discrimination might occur because the customer of the utility who recovers an antitrust judgment would receive a preference over his competitors who are other customers. Id. At the same time, as the district court noted, supervision by a regulatory body does not provide immunity against all antitrust claims. 497 F.Supp. at 1050. Disapproved tariffs provide no immunity when, as here, the regulatory agency expressly refuses to commit itself pending investigation. Northeastern Telephone Co. v. American Telephone & Telegraph Co. at 83-84. A utility that refuses to wholesale power to municipal systems or wheel it from other sources may be ordered to wheel in a Sherman Act suit. Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Likewise, if a utility that competes with a wholesale customer engages in a price squeeze by charging the wholesale customer more than its retail customers, the filed-rate doctrine may not be applicable. City of Mishawaka v. Indiana & Michigan Electric Co., 560 F.2d 1314 (7th Cir. 1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978), but see City of Newark v. Delmarva Power & Light Co., 467 F.Supp. 763, 770-71 (D.Del.1979) (disallowing antitrust remedy for price squeeze by electric utility); McLeran v. El Paso Natural Gas Co., 357 F.Supp. 329 (S.D.Tex.1972) (no antitrust jurisdiction over natural gas rates regulated by the FPC), aff’d without opinion, 491 F.2d 1405 (5th Cir. 1974). And the fact that a tariff permits a utility to supply its residential customers with free light bulbs does not immunize the utility from suit under the federal antitrust laws by competitor light-bulb sellers, Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct." }, { "docid": "7792251", "title": "", "text": "Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Likewise, if a utility that competes with a wholesale customer engages in a price squeeze by charging the wholesale customer more than its retail customers, the filed-rate doctrine may not be applicable. City of Mishawaka v. Indiana & Michigan Electric Co., 560 F.2d 1314 (7th Cir. 1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978), but see City of Newark v. Delmarva Power & Light Co., 467 F.Supp. 763, 770-71 (D.Del.1979) (disallowing antitrust remedy for price squeeze by electric utility); McLeran v. El Paso Natural Gas Co., 357 F.Supp. 329 (S.D.Tex.1972) (no antitrust jurisdiction over natural gas rates regulated by the FPC), aff’d without opinion, 491 F.2d 1405 (5th Cir. 1974). And the fact that a tariff permits a utility to supply its residential customers with free light bulbs does not immunize the utility from suit under the federal antitrust laws by competitor light-bulb sellers, Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976) (Parker v. Brown exemption inapplicable). In sum, an anticompetitive practice embodied in a tariff may violate the antitrust laws if it (a) impacts upon competitors as opposed to customers or (b) has been disapproved by the regulatory agency that is the “first line of defense against . . . anticompetitive practices,” see, e. g., Gulf States Utilities Co. v. FPC, 411 U.S. 747, 760, 93 S.Ct. 1870, 1878, 36 L.Ed.2d 635 (1973) (citing Meeks, Concentration in the Electric Power Industry: The Impact of Antitrust Policy, 72 Colum.L.Rev. 64 (1972)) (the EPC must scrutinize a bond issue for anticompetitive effect). Although we find the district court’s reliance upon the Keogh doctrine to be inappropriate, both because the municipalities were competitors as well as customers of CL&P and because the Commission disapproved several of the R-]rate provisions at issue here, we accept the lower court’s finding that the rates were not motivated by anticompetitive intent. We now turn to each of these points. The district court expressly found that the municipalities were" }, { "docid": "8871532", "title": "", "text": "held a utility’s refusal to wheel subject to antitrust challenge, and in Cantor the Court denied antitrust immunity to a utility which distributed “free” light bulbs to residential consumers. The plaintiff in Cantor, who sold light bulbs at retail, claimed that tying the distribution of a non-monopoly item (light bulbs) to a monopoly item (electricity) constituted illegal use of monopoly power to restrain competition. Although Detroit Edison’s light-bulb-exchange program was part of an approved tariff and therefore could not be altered without the approval of the Michigan Public Service Commission, the Court refused to imply immunity on that basis. . This Court recently summarized these and other implied-immunity cases in Sound, Inc. v. American Tel. & Tel. Co., 631 F.2d 1324, 1327-31 (8th Cir. 1980) (no implied immunity for telecommunications industry under the Federal Communications Act of 1934). . Otter Tail considered federal utility regulation, while Cantor was concerned with state regulation of electric utilities. . See Mishawaka I, 560 F.2d at 1319 (“Nothing in the Supreme Court’s opinion in Conway suggests exclusive jurisdiction ... ”). . Although Arkla demonstrates the current vitality of the filed-rate doctrine, the case is clearly distinguishable from the facts of the instant case. In Arkla, the Supreme Court faced a conflict between state contract law and federal rate regulation and decided that the latter preempted the former. “[U]nder the filed rate doctrine, when there is a conflict between the filed rate and the contract rate, the filed rate controls.” 101 S.Ct. at 2933. Here we have a claimed conflict between federal rate regulation and federal antitrust regulation, and Supremacy Clause considerations do not come into play when a court balances competing federal rules. . This Court in a recent review of the state-action doctrine concluded that the following factors are relevant to a determination of whether the exemption applies: the existence and nature of any relevant statutorily expressed policy; the nature of the regulatory agency’s interpretation and application of its enabling statute, including the accommodation of competition by the regulator; the fairness of subjecting a regulated private defendant to the mandates of antitrust law;" }, { "docid": "3266384", "title": "", "text": "initially accepted the contention that it would be fundamentally unfair to impose liability upon individuals acting entirely under compulsion by the state. Most state compulsion is, however, a mixture of state and private decision-making. A fairness standard, therefore, beyond being unhelpful in most cases, rarely would apply, and was thus rejected. Amici Curiae argued that antitrust concepts are fundamentally inconsistent with the regulation of public utilities, which is usually on a “public interest” basis, thus regulation required immunization. The Court rejected this argument as well, based on three grounds. First, the mere co-application of state and antitrust regulation in an industry does not imply inconsistency between these standards. Second, assuming inconsistency, it is not necessary that when inconsistency arises, antitrust review should be subordinated to state interests. Third, even when exemption is found, that exemption must be limited to policies and activities in the regulated area only. In Cantor, given the fact that the lightbulb market was not a regulated market, exemption was not justified. Turning to precedent concerning implied exemption from the antitrust laws by federal regulatory legislation, the Court held that exemption would be found only if “exemption was necessary in order to make the regulatory act work ‘and even then to the minimum extent necessary.'” Id., at 597, 96 S.Ct. at 3121, quoting Otter Tail Power Company v. U. S., 410 U.S. 366, 389, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Under the holding of Cantor, it was clear that a lightbulb distribution program was not necessary to the regulation of electric power sales. We conclude, based on the Cantor holding, that state regulation of retail rates does not immunize the wholesale rates when, as here, a price squeeze is alleged and wholesale rates are beyond state jurisdiction. The Pennsylvania Public Utility Code, 66 P.S. § 1101 et seq., requires all tariffs to be approved by the PUC prior to becoming effective. 66 P.S. § 1142. The rates approved must be just and reasonable. 66 P.S. § 1141. There is nothing in this regulatory scheme which would be inconsistent with the prohibition of a price squeeze such" }, { "docid": "8871531", "title": "", "text": "462 F.Supp. 1343 (W.D.Pa.1979); City of Shakopee v. Northern States Power Co., Civ. No. 4-75-591 (D.Minn. Oct. 18, 1976). Contra, City of Newark v. Deimarva Power & Light Co., 467 F.Supp. 763 (D.Del.1979). For a law-review article considering the price-squeeze issue in depth, see Note, The Applicability of Antitrust Laws to Price Squeezes in the Electric Utility Industry, 54 St. John’s L.Rev. 103 (1979). . Kirkwood has appeared before the FERC to challenge UE’s proposed wholesale rate increases, to no avail. Moreover, once the FERC approves rate increases, it has no power to invalidate rates retroactively or order other relief if the rates are later found to be unreasonable. 16 U.S.C. § 824d(e). In addition, FERC cannot remedy Kirkwood’s problem on its own. Neither it nor the Missouri PSC has jurisdiction over the relationship as such between wholesale and retail rates. It is this relationship, rather than the unreasonableness of either the wholesale or the retail rate structure standing alone, that creates the problem of which Kirk-wood complains. . In Otter Tail the Supreme Court held a utility’s refusal to wheel subject to antitrust challenge, and in Cantor the Court denied antitrust immunity to a utility which distributed “free” light bulbs to residential consumers. The plaintiff in Cantor, who sold light bulbs at retail, claimed that tying the distribution of a non-monopoly item (light bulbs) to a monopoly item (electricity) constituted illegal use of monopoly power to restrain competition. Although Detroit Edison’s light-bulb-exchange program was part of an approved tariff and therefore could not be altered without the approval of the Michigan Public Service Commission, the Court refused to imply immunity on that basis. . This Court recently summarized these and other implied-immunity cases in Sound, Inc. v. American Tel. & Tel. Co., 631 F.2d 1324, 1327-31 (8th Cir. 1980) (no implied immunity for telecommunications industry under the Federal Communications Act of 1934). . Otter Tail considered federal utility regulation, while Cantor was concerned with state regulation of electric utilities. . See Mishawaka I, 560 F.2d at 1319 (“Nothing in the Supreme Court’s opinion in Conway suggests exclusive jurisdiction ..." }, { "docid": "3266381", "title": "", "text": "S.Ct. 307, 87 L.Ed. 315 (1943) in contending that any antitrust violations based on retail rates as set by the Pennsylvania Public Utility Commission (PUC) are immune from antitrust review. Penn Power also argues that wholesale rates set by the FERC cannot create liability due to the rule of Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975), the federal correlate of the Parker rule. Finally, Penn Power inferentially argues that the combined effect of federal and state regulation creates antitrust immunity. Each of these arguments must be separately considered. Insofar as state regulation is urged as a basis of antitrust immunity, this action is controlled by the holding of Cantor v. Detroit Edison, 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). Cantor was a private antitrust suit brought as a result of actions of Detroit Edison, a public utility, pursuant to a binding tariff approved by the state regulatory commission. Detroit Edison provided customers with lightbulbs in an amount determined by the power usage of the customer. No charge for the bulbs, beyond that of the rate charged for power usage, was made. The program was designed to stimulate the use of power by Detroit Edison customers. The plaintiff, a retail distributor of lightbulbs, brought an antitrust action against Detroit Edison, alleging the lightbulb program was a tying arrangement in violation of the antitrust laws. The bulb distribution plan was submitted as part of a comprehensive tariff filed with and approved by the state regulatory commission. The tariff could not be varied by the utility while it remained in effect. The utility could, however, file a new tariff at any time, dropping the lightbulb program. Such a tariff would be effective upon approval of the commission. The issue presented was whether such a tariff would create antitrust immunity as an act under compulsion of the sovereign. The Court held it did not. Justice Stevens, joined by a plurality of the Court, wrote the opinion of the Court, an opinion in which Chief Justice Burger concurred in two significant parts. Justice" }, { "docid": "345852", "title": "", "text": "county bars was not exempt under Parker v. Brown because the activity was not compelled by the state: The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the state acting as sovereign. 421 U.S. at 790, 95 S.Ct. at 2015. Thus, the court rejected the respondents’ assertion that because their actions were “prompted” by the state, no antitrust liability could attach. Moreover, the court suggested that compulsion would not be the sole criterion, but that before the Parker doctrine afforded him safe conduct through the forbidden territory of anticompetitive practices, a private party might have to make a yet-unspecified additional showing: Here, we need not inquire further into the state-action question because it cannot fairly be said that the state of Virginia through its Supreme Court Rules required the anti-competitive activities of either respondent. Precisely what would have to be shown in such a case was the subject of Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). Detroit Edison, an investor-owned public utility, operated under a regulatory scheme similar to those involved in this action. Detroit Edison would file tariffs for the sale of electric power with the Michigan Public Service Commission, which was empowered by state statute “to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of such public utilities.” 428 U.S. at 584, 96 S.Ct. at 3114. The Commission would approve, modify, or reject the tariffs as filed. While Detroit Edison was free to propose modifications at any time, Michigan law forbade deviation from any tariff actually in force. The Commission had approved one of Detroit Edison’s tariffs containing a program of free distribution of standard-size light bulbs to customers. The petitioner, a retail druggist selling light bulbs, attacked the scheme as an illegal tying arrangement. The petitioner claimed the scheme allowed Detroit Edison to use its monopoly status in the electric power market to increase" }, { "docid": "345853", "title": "", "text": "428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). Detroit Edison, an investor-owned public utility, operated under a regulatory scheme similar to those involved in this action. Detroit Edison would file tariffs for the sale of electric power with the Michigan Public Service Commission, which was empowered by state statute “to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of such public utilities.” 428 U.S. at 584, 96 S.Ct. at 3114. The Commission would approve, modify, or reject the tariffs as filed. While Detroit Edison was free to propose modifications at any time, Michigan law forbade deviation from any tariff actually in force. The Commission had approved one of Detroit Edison’s tariffs containing a program of free distribution of standard-size light bulbs to customers. The petitioner, a retail druggist selling light bulbs, attacked the scheme as an illegal tying arrangement. The petitioner claimed the scheme allowed Detroit Edison to use its monopoly status in the electric power market to increase its power and reduce competition in the light bulb market. Detroit Edison answered that the program was protected under Parker and Goldfarb, because it was compelled by the state acting as sovereign. As augured in Goldfarb, the court determined that the respondent’s showing of formal compulsion was not enough. Justice Stevens’ opinion for the court analyzed the state action in two sections. First, he held that Parker v. Brown only conferred antitrust immunity on the state agents acting in their official capacity. 428 U.S. at 590— 91, 96 S.Ct. 3110. The language of Parker, Justice Stevens reasoned, was carefully chosen so as to exclude mere private parties claiming to be acting under compulsion of state law. 428 U.S. at 590-92 & n.24, 96 S.Ct. 3110. Only three other justices joined in the portion of Justice Stevens’ opinion holding Parker inapplicable to the Cantor facts. 428 U.S. at 581, 96 S.Ct. 3110. Backed by a majority of the court, however, Justice Stevens went on to suggest two instances where private conduct required by state law might" }, { "docid": "904985", "title": "", "text": "setting the jurisdictional rate somewhere above the lower boundary of the zone of reasonableness. A rate set so low that it would fail to recoup fully allocated wholesale costs seems to be beyond the Commission’s power. 426 U.S. at 278, 96 S.Ct. 1999. If the retail rates have been set so low by the state utility commissions that a price squeeze could only be fully remedied by setting the wholesale rates below the lower boundary of the zone of reasonable recovery for fully allocated costs, the squeeze would go unremedied to the extent a wholesale rate set at the lower boundary of the zone of reasonableness did not cure the problem. Although Conway was brought to the district court’s attention, it refused to vacate its order declining to dismiss the complaint and to stay the action. Subsequent to Conway, the Supreme Court decided Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141, refusing to exempt Detroit Edison’s light bulb exchange program from the federal antitrust laws even though it was an approved element of the state rate tariff filed with the Michigan Public Service Commission. Given a complaint that details conduct which, if true, would constitute a substantive antitrust violation, Justice Stevens described two classes of situations involving the interaction of state and federal law where Sherman Act jurisdiction would, nevertheless, be defeated. First, Congress in passing the Sherman Act may not have intended for the Act to apply, in the first instance, to state action. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. Secondly, although originally intended to be covered by the Sherman Act, certain conduct may have become exempted from the Act. In a section of his opinion commanding only a four-judge plurality, Justice Stevens concluded that in Parker the “only Sherman Act issue decided was whether the sovereign State itself, which had been held to be a person within the meaning of § 7 of the statute, was also subject to its prohibitions.” 428 U.S. at 591, 96 S.Ct. at 3117. As in Cantor, the plaintiff municipalities have" }, { "docid": "13221741", "title": "", "text": "v. Public Service Co. of Oklahoma, 849 F.2d 1330, 1334 (10th Cir.1988); II American Bar Association Section on Antitrust Law, Antitrust Law Developments (Third) 972. Indeed, it would be entirely unfair to hold that PP & L did not act in accordance with state policy when its activity had received the imprimatur of the Bureau merely because the PUC later revised this position. We now turn to the Oil Dealers’ argument that according PP & L state action immunity in this case would be inconsistent with the Supreme Court’s decision in Cantor. Leaving aside questions regarding the continued viability of Cantor’s holding, see Yeager’s Fuel, 804 F.Supp. at 711 n. 18, we find no inconsistency. To the contrary, our conclusion that Pennsylvania has clearly articulated a state policy requiring energy conservation and load management efforts such as those challenged in this lawsuit does not conflict with Cantor in any way. In Cantor, a retail druggist who sold light bulbs alleged that the Detroit Edison Company (“Detroit Edison”) was using its monopoly power as a provider of electricity to restrain competition in the sale of light bulbs. Cantor, 428 U.S. at 581-82, 96 S.Ct. at 3113. Detroit Edison implemented a “light bulb exchange program,” pursuant to which it provided limited numbers of light bulbs to its customers, in the late 1800s, before the state of Michigan began regulating electric utilities. In 1916, the Michigan Public Utilities Commission (the “Michigan PUC”) approved a Detroit Edison tariff explaining the program. It also approved Detroit Edison’s subsequent tariffs and a decision on Detroit Edison’s part to eliminate the program for large commercial customers, .thus implying continued approval of the program. See id. at 583, 96 S.Ct. at 3114. Neither the Michigan PUC nor the Michigan legislature “ever made any specific investigation of the desirability of a lamp exchange program or of its possible effect on competition in the light-bulb market,” but because the Michigan PUC had approved its tariff, Detroit Edison could not abandon the program until a new tariff was approved. Id. at 584-85, 96 S.Ct. at 3114-15. Although the case was decided" }, { "docid": "13221742", "title": "", "text": "of electricity to restrain competition in the sale of light bulbs. Cantor, 428 U.S. at 581-82, 96 S.Ct. at 3113. Detroit Edison implemented a “light bulb exchange program,” pursuant to which it provided limited numbers of light bulbs to its customers, in the late 1800s, before the state of Michigan began regulating electric utilities. In 1916, the Michigan Public Utilities Commission (the “Michigan PUC”) approved a Detroit Edison tariff explaining the program. It also approved Detroit Edison’s subsequent tariffs and a decision on Detroit Edison’s part to eliminate the program for large commercial customers, .thus implying continued approval of the program. See id. at 583, 96 S.Ct. at 3114. Neither the Michigan PUC nor the Michigan legislature “ever made any specific investigation of the desirability of a lamp exchange program or of its possible effect on competition in the light-bulb market,” but because the Michigan PUC had approved its tariff, Detroit Edison could not abandon the program until a new tariff was approved. Id. at 584-85, 96 S.Ct. at 3114-15. Although the case was decided before the Court clearly delineated its two-pronged test for state action immunity, the Cantor Court in essence ruled that Michigan had not clearly articulated a policy encompassing the light bulb program. See Cantor, 428 U.S. at 585, 96 S.Ct. at 3115 (“We infer that the State’s policy is neutral on the question whether a utility should, or should not, have such a program.”). It based its conclusion on the facts that although the Michigan PUC was charged with rate regulation, Michigan did not regulate the distribution of light bulbs; no state statute mentioned light bulb exchange programs; neither the legislature nor the Michigan PUC investigated the' program; the program began before the Michigan PUC was created; and no other electric utility in the state offered such a program. Id. at 583-85, 96 S.Ct. at 3114-15. In contrast, in this case, Pennsylvania statutes expressly provide for PUC regulation of rates, foresee the establishment of rebate and load management programs and authorize the PUC to evaluate such programs. The PUC has approved the RTS Rate and, acting" }, { "docid": "3266391", "title": "", "text": "of the limited powers of the FERC can fully remedy an antitrust violation. Mere consideration of a claim does not rise to the level of complete disposition of the underlying violation. Conway does not mandate an exemption from antitrust review under Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1974). The Gordon rule does not differ appreciably from that announced in Cantor. Exemption results only if there is a clear repugnancy between the regulatory legislation and antitrust review. Justice Douglas, in his concurring opinion writes: “The mere existence of a statutory power of review by the SEC over fixed commission rates cannot justify immunizing those rates from antitrust challenges. The antitrust laws are designed to safeguard a strong public interest in free and open competition, and immunity from those laws should properly be implied only when some equivalent mechanism is functioning to protect that public interest.” Id., at 692, 95 S.Ct. at 2616. The FERC does not provide an “equivalent mechanism” to protect public interest. The FERC cannot enjoin violation of antitrust law; it cannot revise retail rates or fix wholesale rates beyond the zone of reasonableness; it cannot award damages. District Court jurisdiction is necessary to preserve these remedies. Given the fact that Conway requires the FERC to consider (and by implication, to follow) the antitrust laws, it cannot be said that dual FERC and District Court jurisdiction creates repugnancy. ■ The District Court must, therefore, be found to have jurisdiction to adjudicate plaintiffs’ claims. There is no question that Penn Power is subject to regulation by both state and federal agencies. All rates are reviewed by a regulatory commission. Because, however, no regulatory agency has jurisdiction over the complete rate structure complained of by plaintiffs, it is improper to accord antitrust immunity to the rate related complaints raised here. When the entirety of rate regulation is considered, the significant factors underlying a determination of exemption due to state or federal regulation are not modified. There is no mechanism which accords overall review of ratemaking and its potential anticompetitive effect. There is" }, { "docid": "3266382", "title": "", "text": "the customer. No charge for the bulbs, beyond that of the rate charged for power usage, was made. The program was designed to stimulate the use of power by Detroit Edison customers. The plaintiff, a retail distributor of lightbulbs, brought an antitrust action against Detroit Edison, alleging the lightbulb program was a tying arrangement in violation of the antitrust laws. The bulb distribution plan was submitted as part of a comprehensive tariff filed with and approved by the state regulatory commission. The tariff could not be varied by the utility while it remained in effect. The utility could, however, file a new tariff at any time, dropping the lightbulb program. Such a tariff would be effective upon approval of the commission. The issue presented was whether such a tariff would create antitrust immunity as an act under compulsion of the sovereign. The Court held it did not. Justice Stevens, joined by a plurality of the Court, wrote the opinion of the Court, an opinion in which Chief Justice Burger concurred in two significant parts. Justice Brennan concurred in the result, but not the reasoning of the plurality. Justice Stevens discusses the holding of Parker in the first section of the plurality opinion. Based on the history and careful language of Parker, Justice Stevens concludes that Parker applies only to acts of the state or its agents. Since Cantor does not involve actions of the state alone, Parker does not control. This holding was not joined by the majority of the Court, however. As a result, the scope of Parker is unclear. See Burger Concurrence, 428 U.S. 604, 96 S.Ct. 3110. Part two of the plurality opinion is joined by Chief Justice Burger. Because of the concurrence of the Chief Justice, this section (and section four) contains the critical majority holding of the Court. The question considered in part two of the decision is whether “private conduct required by state law is exempt from the Sherman Act.” Parker, itself, is not considered. The Court turns rather to other precedent in attempting to define a rule controlling the question posed. The Court" }, { "docid": "8871520", "title": "", "text": "v. American Telephone & Telegraph Co., 487 F.Supp. 942, 951 (S.D.N.Y.1980). Kirk-wood alleges that it has been injured as a competitor, not as a customer, though it stands in both relations to UE. A rule formulated to ensure uniformity of rates as between customers should not give an unfair advantage to a utility in its dealings with competitors. B. State action The District Court’s second ground for granting summary judgment was that UE’s wholesale and retail sales are immune to antitrust challenge under the state-action exemption articulated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). Parker involved an antitrust challenge to an agricultural marketing program in California which the state designed to stabilize market prices for commodities, including raisins. The Supreme Court held that Congress did not intend the Sherman Act “to restrain a state or its officers or agents from activities directed by its legislature.” 317 U.S. at 350-51, 63 S.Ct. at 313-14. Subsequent cases interpreting Parker make clear that the state-action antitrust exemption does not encompass all action taken under color of state law. For example, in Cantor v. Detroit Edison Co., supra, the fact that the defendant utility’s light-bulb-exchange program was contained in an approved tariff and therefore could not be continued without the regulatory commission’s permission did not confer antitrust immunity on the utility. The Supreme Court found that Michigan’s regulatory policy was neutral with regard to whether such a program should exist. Considering this regulatory neutrality in conjunction with the fact that Detroit Edison itself contributed substantially to the decision to adopt the program, the Supreme Court decided Detroit Edison should be held responsible for any resulting violation of the Sherman Act. “[Notwithstanding the state participation in the decision, the private party exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision.” 428 U.S. at 593,96 S.Ct. at 3118. More recently, in California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), the Supreme Court set forth" }, { "docid": "4930588", "title": "", "text": "‘prompted’ by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.” 421 U.S. at 790, 95 S.Ct. at 2015, 44 L.Ed.2d at 587. The Supreme Court again refused to apply the state action exemption in Cantor v. Detroit Edison Company, 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), which involved defendant Detroit Edison Company’s policy of distributing free light bulbs to its customers. Plaintiff charged that Detroit Edison was using its monopoly power as a supplier of electricity to reduce competition in the sale of light bulbs. Detroit Edison had begun its light bulb distribution program in the early days of its operation and the program was already in effect at the time of the creation of the Michigan Public Service Commission, the agency which regulated Detroit Edison. The Public Service Commission never specifically approved or disapproved of Detroit Edison’s light bulb policy. However, Detroit Edison was not free to change its program without filing a new tariff with the Commission and making an adjustment in its rates. Detroit Edison argued that the Commission’s tacit approval of the plan and its requirement that Detroit Edison file a tariff before eliminating it constituted “state action” sufficient to exempt Detroit Edison from the antitrust laws. The Court ruled that a state cannot confer immunity from antitrust laws merely by approving a private company’s proposed trade restraint policy and then ordering the company to comply with the policy. The Court stated, “[S]uch a rule may give a host of state regulatory agencies broad power to grant exemptions from an important federal law for reasons wholly unrelated either to federal policy or even to any necessary significant state interest.” 428 U.S. at 602, 96 S.Ct. at 3123, 49 L.Ed.2d at 1157. A year later in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that an Arizona Supreme Court disciplinary rule which prohibited lawyer advertising did not violate the antitrust laws. The Arizona disciplinary rule on advertising was an affirmative command of the State" }, { "docid": "3266380", "title": "", "text": "contend Penn Power, along with other members of CAPCO, have conspired to block. Plaintiffs complain that Penn Power has adopted a policy of refusing to wheel power purchased from other sources to plaintiffs through their transmission facilities. These practices, plaintiffs argue, constitute refusals to deal in violation of the antitrust laws. Plaintiffs finally contend (as part of their miscellaneous claims) that Penn Power has timed its submission of rates with the intention of damaging plaintiffs’ ability to compete. The rate changes complained of allegedly made equipment purchased by plaintiffs unprofitable to operate. Plaintiffs also contend that Penn Power has failed to give them quantity discounts given to other similar wholesale customers. Subject Matter Jurisdiction over Rate Claim Penn Power has moved to dismiss the rate related price squeeze counts in plaintiffs’ complaint, arguing that ratemaking on both the wholesale and retail levels is so regulated by the state and federal governments as to create immunity from antitrust review of rate decisions. Penn Power relies on the rule of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) in contending that any antitrust violations based on retail rates as set by the Pennsylvania Public Utility Commission (PUC) are immune from antitrust review. Penn Power also argues that wholesale rates set by the FERC cannot create liability due to the rule of Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975), the federal correlate of the Parker rule. Finally, Penn Power inferentially argues that the combined effect of federal and state regulation creates antitrust immunity. Each of these arguments must be separately considered. Insofar as state regulation is urged as a basis of antitrust immunity, this action is controlled by the holding of Cantor v. Detroit Edison, 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). Cantor was a private antitrust suit brought as a result of actions of Detroit Edison, a public utility, pursuant to a binding tariff approved by the state regulatory commission. Detroit Edison provided customers with lightbulbs in an amount determined by the power usage of" }, { "docid": "3266385", "title": "", "text": "by federal regulatory legislation, the Court held that exemption would be found only if “exemption was necessary in order to make the regulatory act work ‘and even then to the minimum extent necessary.'” Id., at 597, 96 S.Ct. at 3121, quoting Otter Tail Power Company v. U. S., 410 U.S. 366, 389, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Under the holding of Cantor, it was clear that a lightbulb distribution program was not necessary to the regulation of electric power sales. We conclude, based on the Cantor holding, that state regulation of retail rates does not immunize the wholesale rates when, as here, a price squeeze is alleged and wholesale rates are beyond state jurisdiction. The Pennsylvania Public Utility Code, 66 P.S. § 1101 et seq., requires all tariffs to be approved by the PUC prior to becoming effective. 66 P.S. § 1142. The rates approved must be just and reasonable. 66 P.S. § 1141. There is nothing in this regulatory scheme which would be inconsistent with the prohibition of a price squeeze such as that asserted by plaintiffs. In fact, the wholesale rates controlled by the FERC are not controlled by the PUC. 66 P.S. § 1142. The full mechanism of price squeeze, therefore, the control of both retail and wholesale rates, is not within PUC control. Applying antitrust review to the differential between these rates is thus not inconsistent with the state regulatory scheme; the subject of the claims falls outside the regulatory regime. State regulation does not provide grounds for an implied exemption to the antitrust laws in this instance. Accord, City of Mishawaka v. Indiana & Michigan Electric Company, 560 F.2d 1314 (7th Cir. 1977), and City of Shakopee v. Northern States Power Co., Civ. No. 4-75-591 (D.Minn.1976). Penn Power relies heavily upon a recent opinion of the Court of Appeals for the Third Circuit, Mobilfone of Northeastern Pennsylvania v. Commonwealth Telephone Co., 571 F.2d 141 (3d Cir. 1978), in arguing against application of Cantor. This reliance is misplaced. In Mobilfone the Court of Appeals found the Parker exemption to be justified due to the" }, { "docid": "8871521", "title": "", "text": "action taken under color of state law. For example, in Cantor v. Detroit Edison Co., supra, the fact that the defendant utility’s light-bulb-exchange program was contained in an approved tariff and therefore could not be continued without the regulatory commission’s permission did not confer antitrust immunity on the utility. The Supreme Court found that Michigan’s regulatory policy was neutral with regard to whether such a program should exist. Considering this regulatory neutrality in conjunction with the fact that Detroit Edison itself contributed substantially to the decision to adopt the program, the Supreme Court decided Detroit Edison should be held responsible for any resulting violation of the Sherman Act. “[Notwithstanding the state participation in the decision, the private party exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision.” 428 U.S. at 593,96 S.Ct. at 3118. More recently, in California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), the Supreme Court set forth two criteria for applying the state-action exemption. “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the States itself.” 445 U.S. at 105, 100 S.Ct. at 943 (quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123, 1135, 55 L.Ed.2d 364 (1978) (plurality opinion of Brennan, J.)). UE’s alleged price squeeze does not satisfy either of the Midcal criteria. First, while in Midcal the Court found an affirmative legislative policy to permit resale price maintenance (which was the challenged restraint), here the legislative policy does not authorize or encourage the challenged anti-competitive price squeeze. Instead, the FERC and PSC are both enjoined to seek out and eliminate discriminatory prices. Second, while UE’s individual wholesale and retail rates are “actively supervised” by the FERC and PSC, Kirkwood challenges the interrelation of those rates, which is under the authority of neither Commission. Although under Conway, the FERC is supposed to consider price-squeeze claims, given its limited" } ]

[ { "docid": "21902537", "title": "", "text": "filed with the District Court in response to the government’s motions to dismiss, they stated generally that they were willing to waive claims in excess of $10,000 and specifically contended that a waiver of pre-filing claims would be sufficient. Each appellant’s memorandum maintained that Plaintiff should not be precluded from recovering monies which accrue from the date of the filing of the lawsuit to the date of judgment which result from litigation delay. Thus, should the Court determine that Plaintiff’s claim is essentially for back pay, Plaintiff waives his claim in excess of $10,000. Plaintiff posits, however, that his recovery in excess of $10,000 should not be precluded because of the delay occasioned by litigation and that to the extent that his claim accrues in excess of $10,000 from the date of filing to the date of judgment he be entitled to recover such amount. App. 144-145 (Preston); App. 55 (Goble) (virtually the same language). Subsequently Goble filed an additional response specifying that his waiver included not only active duty pay but also retirement pay and “all other allowances and emoluments of office that he otherwise would be entitled to,” App. 79, but he did not expressly disclaim post-filing accruals. We agree with the District Court that, so far, appellants have not succeeded in meeting their burden of establishing that the District Court has jurisdiction over their claims. In our view, however, the District Court should not have transferred the cases to the Court of Claims without first giving appellants an opportunity to amend their complaints to effect an adequate waiver. Under 28 U.S.C. § 1653 (1976), “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” Congress intended to permit amendment broadly to avoid dismissal of suits on technical grounds. Moore v. Coats Co., 270 F.2d 410, 412 (2d Cir. 1959); see Fed.R.Civ.P. 15; 3 J. Moore, Federal Practice 1115.09 (2d ed. 1982); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1214 (1969). In cases involving waiver of claims against the government in excess of $10,000, the existence of jurisdiction in" } ]

[ { "docid": "18600400", "title": "", "text": "collateral to the Bank. Mr. Koehler clearly is not eligible to be a debtor under Chapter 13 of the Code. Counsel for Mr. Koehler argues, however, that the creditor, by failing to object to the plan prior to its confirmation and by failing to appeal the confirmation of the plan, has waived its right to raise the question of jurisdiction. While the Court has not been informed of the reason the creditor failed to object to the confirmation of the plan or failed to appeal the confirmation of the plan, Mr. Koehler does not get the benefit of those failures on behalf of the creditor. This Court may raise the jurisdiction question at any time. Matter of Pearson, 773 F.2d 751, 757, (6th Cir.1985). The question of eligibility to be a debtor in Chapter 13 is much like the threshold subject matter jurisdiction determination in diversity cases where the $10,-000 minimum amount in controversy is challenged. The Pearson court cites St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938) for the proposition that in a diversity case, the amount claimed in good faith by the plaintiff controls unless it appears to a legal certainty that the claim is for less than the jurisdictional amount or the amount claimed is merely colorable. Pearson at 757. The opinion of Justice Roberts in the St. Paul Indemnity Co. case was “but if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was, therefore, colorable for the purpose of conferring jurisdiction, the suit will be dismissed.” Id. at 288-90, 58 S.Ct. at 590-91. Further, the Pearson court quoting Worthams v. Atlantic Life Ins. Co., 533 F.2d 994, 997 (6th Cir.1976), states “Of course, when a party for the purpose of obtaining jurisdiction alleges excessive damages beyond any reasonable expectation of recovery, jurisdiction does not attach.” Pearson" }, { "docid": "6320943", "title": "", "text": "amount ultimately recovered. E. g., Jones v. Landry, 5 Cir., 1967, 387 F.2d 102, 103; Seguros Tepeyac, S. A., Compania Mexicana de Seguros Generales v. Bostrom, 5 Cir., 1966, 360 F.2d 154. Whether the claim is made in good faith is “measured by the standard of legal certainty that the plaintiff cannot recover as much as the jurisdictional amount,” Jones v. Landry, 5 Cir., 1967, 387 F.2d 102, 104, since dismissal for lack of jurisdiction is justified only when it appears to a legal certainty that the plaintiff cannot recover at least that amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Otherwise, the plaintiff’s claim is controlling. If it is for more than $10,000, federal jurisdiction exists even though the face of the complaint reveals a defense to all or part of it, e. g., Anderson v. Moorer, 5 Cir., 1967, 372 F.2d 747, 750 (defense of res judicata), and the plaintiff’s inability to recover in excess of $10,000 neither demonstrates his bad faith nor deprives the court of jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586 (1938). It does not appear to a legal certainty in this case that Johns-Man-ville cannot recover at least the minimum amount required for jurisdiction to exist. The Mississippi three-year statute of limitations establishes a defense personal to the debtor against actions commenced on open or stated accounts that are not acknowledged in a writing signed by the debtor. Miss.Code Ann. § 729 (Supp.1968). This defense must be pleaded in order for a defendant to take advantage of it, see Davis v. Barr, 250 Miss. 54, 157 So.2d 505, 163 So.2d 745 (1963), and its availability will depend upon the particular facts of each case. Notwithstanding that section 729 may prove in fact to bar recovery by JohnsManville of more than $8,774.58, this is a factual issue requiring an adjudication on the merits of this case. The availability of the defense to Mitchell Enterprises, even if apparent upon the face of Johns-Manville’s" }, { "docid": "7355795", "title": "", "text": "of Leonard .Sobel meets the jurisdictional requirement.” On April 5, 1962, a memorandum of law, docketed as Document No. 19, was filed with the court by counsel for plaintiffs. In view of the above circumstances and the following language of the United States Court of Appeals for the Third Circuit, the trial judge pointed out to counsel at the time of the trial that the court had an obligation to examine the question of jurisdiction presented by this case: “In any event the court below must determine whether or not there is diversity jurisdiction. We cannot do so on the present record. Jurisdictional questions should be determined as early as possible in a litigation.” See Berkowitz v. Philadelphia Chewing Gum Corporation, 303 F.2d 585, 588 (3rd Cir., 1962). The United States District Court only has jurisdiction of this case if the amount in controversy is above $10,-000.00. In 1938, the Supreme Court stated: “The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. * * * But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845. Plaintiff claims $10,000. damages for expenses incurred, future medical expenses for his wife arising from the accident, and for loss of her society, companionship, services" }, { "docid": "9395540", "title": "", "text": "against his own insurer, but only to actions brought by an injured plaintiff directly against the insurer of the alleged tort-feasor where the tort-feasor himself was not joined as a defendant. For that reason § 1332(c) does not apply to the present action, and plaintiff’s challenge to our removal jurisdiction thereunder must fail. II. Plaintiff next alleges that the amount in controversy requirement of 28 U.S.C. § 1332(a) is not met in this case because the limits of the two policies amount to exactly $10,000, and thus the amount sued for fails to exceed $10,000. Defendant responds that the plaintiff is bound by her complaint, which seeks $11,343.90, including $1,343.90 for accrued medical expenses in excess of the $10,000 policy limits. The rule generally applied by federal courts to determine what constitutes the amount in controversy is often called the “plaintiff-viewpoint” rule. As outlined by the Supreme Court, it is: “The rule governing dismissal for want of jurisdiction in cases brought in the federal courts is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Thus it must appear to a legal certainty that the amount claimed by plaintiff is unrecoverable before a court will dismiss an action for lack of jurisdictional amount. In the present case we have the novel situation of a plaintiff-insured challenging the amount claimed in her complaint as excessive and a defendant-insurer asserting that plaintiff’s claim in excess of the policy limits is proper. Nevertheless, plaintiff having raised a jurisdictional question, we must examine the complaint to see whether, as a matter of law, it puts in controversy the requi site jurisdictional amount. In this diversity case, we must look to state law to determine the nature and extent of the right to be enforced. Horton v. Liberty" }, { "docid": "9767790", "title": "", "text": "involved in environmental litigation, the measure of “a matter in controversy” in excess of $10,000 cannot easily be resolved on a motion to dismiss. The physical value of Astoria No. 6 and its intake-discharge structures, of course, involves many times this amount. No showing of the quantified costs from new pollution has been made to question plaintiffs’ allegation that they will exceed $10,000. It is established that “[t]he rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). It does not appear to the “legal certainty” required by St. Paul Mercury that plaintiffs do not meet the jurisdictional amount required under 28 U.S.C. § 1331(a). Moreover, since this action challenges a permit issued under 33 U.S.C. § 403, which is an act grounded on the commerce clause and one to which NEPA adds administrative requirements, we also find that jurisdiction is well founded on 28 U.S.C. § 1337. Zabel v. Tabb, 430 F.2d 199, 203-204 (5th Cir. 1970), cert. den. 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). Under the circumstances, it is not necessary for us to determine whether, as plaintiffs contend, Congress’ power to enact NEPA is grounded on the commerce clause or the necessary and proper clause or in part on the authority over navigable waters and other constitutional provisions. Finally, having established jurisdiction on several different bases, each of which appears sufficient to support a grant of the relief sought here, we need not resolve the issue of whether 28 U.S. C. § 1361 applies. Jurisdiction, accordingly, is established here under 5 U.S.C. § 702, 28 U. S.C. § 1331(a) and 28 U.S.C. § 1337. This being the case, the court may grant appropriate relief under 28 U.S.C. §§ 2201 and 2202. Cf. A. Seltzer & Co. v. Livingston, 253 F.Supp. 509 (S.D.N.Y.1966), aff'd" }, { "docid": "6698202", "title": "", "text": "Cir. 1934). In my opinion, the relief sought by the plaintiffs in the instant action involves the specific .sum of $10,000, and there is nothing presently before the court which affirmatively demonstrates that the plaintiffs ultimately will recover anything more than the amount which they expended upon the debentures. The defendants urge that it must appear “to a legal certainty” that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Parker v. Erie-Lackawanna System, 393 F.2d 229, 231 (7th Cir. 1968). However, an examination of the complaint and the defendants’ petition for removal does not disclose that the plaintiffs, if they prevail, will be entitled as a matter of right to anything more than repurchase of the debentures for $10,000. Powers v. Fultz, supra, 404 F.2d at 52, states that where “the action is for a money judgment the ‘sum’ claimed controls the existence of the requisite jurisdictional amount if the claim is apparently made in good faith.” While the relief requested in the case at bar differs somewhat from that sought in Powers, it may be noted that the complaint in Powers specifically sought $10,000 “together with interest on the aforesaid principal amount of the joint and survivorship account.” In Brainin v. Melikian, supra, the court stated that the plaintiff sued the endorsers of the note involved “for $10,324.44, the principal amount of the note, plus the 8% interest therein fixed.” In the case at bar, the plaintiffs have made no demand for the 6% interest which the debentures in question allegedly pay. I do not regard their request for “other or further relief” as the equivalent of an express demand for interest. Finally, each of the two plaintiffs purportedly purchased debentures for $5,-000. Although the issue is not raised by the parties, there is a doubt that the plaintiffs are permitted to aggregate their individual claims for $5,000 to reach the jurisdictional amount. See Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22" }, { "docid": "23515659", "title": "", "text": "the amount in controversy is determined by looking to the circumstances at the time the complaint is filed. Thesleff v. Harvard Trust Co., 154 F.2d 732, 732 n. 1 (1st Cir.1946) (noting that “federal jurisdiction depends upon the facts at the time suit is commenced, and subsequent changes ... in the amount in controversy [will not] devest [sic] it”); 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3702 at 28-29 n. 31 (1985); Watson v. Blankinship, 20 F.3d 383, 387 (10th Cir.1994); Klepper v. First American Bank, 916 F.2d 337, 340 (6th Cir.1990); see Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 2222, 104 L.Ed.2d 893 (1989) (noting that for determining diversity of citizenship, “[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed”). Moreover, it has long been the rule that a court decides the amount in controversy from the face of the complaint, “unless it appears or is in some way shown that the amount stated in the complaint is not claimed ‘in good faith.’ ” Horton, 367 U.S. at 353, 81 S.Ct. at 1573 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938)). When a plaintiff initiates an action in federal court, the plaintiff knows or should know whether the claim surpasses the jurisdictional minimum. St. Paul, 303 U.S. at 290, 58 S.Ct. at 591. [The plaintiffs] good faith in choosing the federal forum is open to challenge not only by resort to the face of the complaint, but by the facts disclosed at trial, and if from either source it is clear that his claim never could have amounted to the sum necessary to give jurisdiction, there is no injustice in dismissing the suit. Id. Coventry and Stop & Shop both cite passages from the seminal case of St. Paul, 303 U.S. 283, 58 S.Ct. 586 (1938), without discussing its facts. We pause to do so here. In St. Paul, the plaintiff-employer initiated a" }, { "docid": "12381596", "title": "", "text": "law”); Keene, 508 U.S. at 209, 113 S.Ct. 2035. Under that principle, it may be that Roca Solida’s takings claim in the district court, proper when filed because plausibly then valued at no more than $10,000, can still be adjudicated in district court and support an award of more than $10,000 if warranted by post-filing events. An obstacle to that conclusion, however, is this court’s decision in Smith v. Orr, which concluded, in the context of an employee’s claim for backpay, that a district court would lose Little Tucker Act jurisdiction once the amount claimed “accrued to greater than $10,000.” 855 F.2d at 1553. Perhaps Smith 'v. Orr should be limited to barring claims, such as backpay claims based on fixed salary payments, where the non-contingent facts alleged make it effectively certain from the outset that the amount at issue will exceed $10,000. Cf. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (Regarding one jurisdictional minimum, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”). Smith v. Orr itself cited only backpay cases in reaching its conclusion, 855 F.2d at 1553 nn. 42-45, 47, and we have not applied Orr outside those circumstances. See Simanonok v. Simanonok, 918 F.2d 947, 950-51 (Fed.Cir.1990). Moreover, a leading scholar, discussing Smith v. Orr, has stated that “the proposition that a court may take and then lose trial jurisdiction due to the mere passage of time may be questioned in light of’ Keene and Grupo Dataflux. Gregory C. Sisk, Litigation With The Federal Government 238 (4th ed.2006). Alternatively, or in addition, perhaps a special constitutional-avoidance tolling of the § 2501 statute of limitations is justified, despite the general absence of equitable tolling. There may be an argument for such tolling on a ground that borrows from the essential principles stated in decisions allowing injunctive relief if the Tucker Act remedy has been withdrawn: “it" }, { "docid": "11602111", "title": "", "text": "1331, Title 28, United States Code, if the amount in controversy requirement is satisfied. Defendants contend that the amount in controversy requirement has not been satisfied in this case. The general rule is that the amount in controversy must be determined from the complaint itself, “unless it appears or is in some way shown that the amount stated in the complaint is not claimed ‘in good faith.’ In deciding this question of good faith . it ‘must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.’ ” Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890, 894 (1961); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Although the complaint does not contain a prayer for a specific dollar amount of back pay and damages, it does seek “. . . back pay, full rights to normal salary increases, and retirement benefits . [and] such further actual damages as may be established on hearing At the trial, plaintiff clearly established that his back pay and damage claims exceed the $10,000 amount in controversy requirement, and are made in good faith. The complaint will be considered amended to state that plaintiffs claim for back pay and damages exceeds $10,000. Rule 15(b) of the Federal Rules of Civil Procedure. Therefore, it is assumed for the purpose of disposing of this action that subject matter jurisdiction exists of the claim for relief against the City of Independence under Section 1331, Title 28, United States Code, despite the doctrine of Monroe v. Pape, supra. B. Claim of Denial of Procedural and Substantive Due Process. Plaintiff contends that the termination of his employment without a notice of specific grounds for the termination and a hearing violated rights to procedural and substantive due process under the Fourteenth Amendment. However, the requirements of procedural due process apply only to a deprivation of interests which come within the Fourteenth Amendment’s, protection of “property” or “liberty,” Board of Regents v." }, { "docid": "14937352", "title": "", "text": "counterclaim. Plaintiff argues that defendants have not pled the nature of the injury which supports the $10,000 jurisdictional prerequisite. The standard by which the Court examines a plaintiff’s claim for damages is the “legal certainty” rule. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Wade v. Rogala, 270 F.2d 280, 284 (3d Cir.1959). Under this test, defendants’ properly pleaded counterclaims satisfy the requisite amount in controversy unless the court determines to a legal certainty that the claims are for less than the jurisdictional amount of $10,000. The. amount claimed by the claimant controls if the claim is apparently made in good faith. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra at 288-90, 58 S.Ct. at 590-91; Wade v. Rogala, supra at 284. Defendants’ counterclaims clearly satisfy this standard. 2. Declaratory Judgment and Equitable Relief Claims Defendants’ third counterclaim seeks a declaratory judgment that 3,000 shares of stock in Advance which was purchased in 1970 by Creative Aids, and which was subsequently transferred to plaintiff, his wife and two children, was in violation of the Subscription Agreement entered into at the time of the original limited offering. The fourth counterclaim seeks an order direct ing plaintiff to transfer all shares of Class A common stock owned or controlled by plaintiff to Custom-Bilt Machinery # 2 in exchange for the fair market value of his shares as determined by an appraisal of a special master designated by the Court. Plaintiff seeks dismissal of these claims on the basis that no justiciable case or controversy exists. As the pleadings in this case demonstrate, true ownership of the shares is unclear. Even though the shares were subscribed and issued to Creative Aids, plaintiff alleges that he is the true owner of the shares. In addition, plaintiffs Amended Complaint suggests that Ruth Linker, Jonathan Linker and Kate Linker may have an ownership interest in the shares. The authorities agree that the question of rightful ownership of securities is a proper “case or controversy” for the purpose of a declaratory judgment" }, { "docid": "6320942", "title": "", "text": "Johns-Manville to remove the bar of the three-year statute did not suffice as acknowledgments under Mississippi law. The Judge concluded: “Since the plaintiff’s claim fails to meet the $10,000 jurisdictional requirement without inclusion of those sums barred by the statute of limitations, it is apparent to a ‘legal certainty’ that the necessary jurisdictional amount is not met. * * * “The Court holds, therefore, that it is without jurisdiction to hear this cause.” In thus dismissing this ease for lack of jurisdictional amount, the District Court erred. Therefore, we reverse and remand the case for further proceedings. In diversity cases determination of the amount in controversy presents a federal question to be decided by federal standards. State law is relevant to this determination insofar as it defines the nature and extent of the right the plaintiff seeks to enforce. Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961). The amount in controversy is measured by the amount claimed in good faith by the plaintiff rather than by the amount ultimately recovered. E. g., Jones v. Landry, 5 Cir., 1967, 387 F.2d 102, 103; Seguros Tepeyac, S. A., Compania Mexicana de Seguros Generales v. Bostrom, 5 Cir., 1966, 360 F.2d 154. Whether the claim is made in good faith is “measured by the standard of legal certainty that the plaintiff cannot recover as much as the jurisdictional amount,” Jones v. Landry, 5 Cir., 1967, 387 F.2d 102, 104, since dismissal for lack of jurisdiction is justified only when it appears to a legal certainty that the plaintiff cannot recover at least that amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Otherwise, the plaintiff’s claim is controlling. If it is for more than $10,000, federal jurisdiction exists even though the face of the complaint reveals a defense to all or part of it, e. g., Anderson v. Moorer, 5 Cir., 1967, 372 F.2d 747, 750 (defense of res judicata), and the plaintiff’s inability to recover in excess of $10,000 neither demonstrates" }, { "docid": "18304449", "title": "", "text": "Inc. as a party would relate back to the original filing of the Complaint. Furr’s, Inc. argues that it cannot now be joined as a party because it did not receive notice of this action until after the statutory time period had passed. However, under 42 U.S.C. § 2000e-5(f)(l) Plaintiff was required to bring suit, not provide notice to Defendants, within ninety days of the right-to-sue letter. Because Plaintiffs amendment relates back to the commencement of the action, Furr’s, Inc. can be made a party without violating the ninety-day requirement. C. Amount in Controversy. Plaintiff claims subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. Alternatively, she bases jurisdiction on a federal question, with pendent jurisdiction over her state claims. Defendants argue that Plaintiff failed to allege permissible damages in an amount which would satisfy the $10,000 amount in controversy requirement of 28 U.S.C. § 1332. The Court disagrees. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 854 (1938), set the standard for a jurisdictional inquiry into the amount in controversy. It must appear “to a legal certainty” that the claim is really for less than the requisite amount to justify dismissal. Id. at 288-89. See also Gibson v. Jeffers, 478 F.2d 216, 221 (10th Cir.1973). Generally, “the sum claimed by the plaintiff controls if this claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 288, 58 S.Ct. at 590. However, once the amount has been challenged, the party asserting jurisdiction has the burden of showing that it does not appear to a legal certainty that the claim is for less than $10,-000. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Gibson v. Jeffers, 478 F.2d at 221. Where allegations of jurisdictional facts are challenged, plaintiff must support them by competent proof, McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), including amendment or affidavits, if necessary. Diefenthal v. C.A.B., 681" }, { "docid": "14937351", "title": "", "text": "“transaction or occurrence” test. These counterclaims raise the .issue of ownership of the CustomBilt shares that are the subject matter of plaintiff’s Amended Complaint, and arise from the same securities transaction. Similarly, defendants’ counterclaim for defamation is based upon the identical securities transactions and conduct by the defendants allegedly supporting- plaintiff’s claims of fraud, misrepresentation, misconduct and breach of duty. Inasmuch as the counterclaims are compulsory, the Court has no discretion under Fed.R.Civ.P. 13(a) to deny defendants their due process right to litigate their claims against the plaintiff. Defendants’ counterclaims for abuse of process and intentional infliction of emotional distress do involve occurrences apart from the securities transactions. However, these separate occurrences clearly bear a logical relationship to the securities transactions. Therefore, jurisdiction over defendants’ counterclaims exists under Fed. R.Civ.P. 13(a). Even if these counterclaims are not properly brought as compulsory, they meet the requirements of permissive counterclaims which the court in its discretion may permit. Diversity of citizenship exists between the parties and the defendants’ claim in excess of $10,000 in damages in each counterclaim. Plaintiff argues that defendants have not pled the nature of the injury which supports the $10,000 jurisdictional prerequisite. The standard by which the Court examines a plaintiff’s claim for damages is the “legal certainty” rule. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Wade v. Rogala, 270 F.2d 280, 284 (3d Cir.1959). Under this test, defendants’ properly pleaded counterclaims satisfy the requisite amount in controversy unless the court determines to a legal certainty that the claims are for less than the jurisdictional amount of $10,000. The. amount claimed by the claimant controls if the claim is apparently made in good faith. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra at 288-90, 58 S.Ct. at 590-91; Wade v. Rogala, supra at 284. Defendants’ counterclaims clearly satisfy this standard. 2. Declaratory Judgment and Equitable Relief Claims Defendants’ third counterclaim seeks a declaratory judgment that 3,000 shares of stock in Advance which was purchased in 1970 by Creative Aids, and which was" }, { "docid": "2336388", "title": "", "text": "this Court based on the federal diversity statute, 28 U.S.C. § 1332. That statute authorizes federal courts to exercise subject matter jurisdiction over actions “between citizens of different States” so long as “the matter in controversy exceeds the sum or value of $50,-000, exclusive of interest and costs.” 28 U.S.C. § 1332. In class actions, each class member must on his or her own meet the amount in controversy requirement. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). For purposes of measuring the amount in controversy, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). The case cannot be dismissed for failure to exceed the requisite amount in controversy unless it “appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount ...” St. Paul Mercury Indem. Co., 303 U.S. at 289, 58 S.Ct. at 590; accord In re School Asbestos Litig., 921 F.2d 1310, 1315 (3d Cir.1990) (“the court is required only to dismiss those class members whose claims appear to a 'legal certainty’ to be less than the jurisdictional amount”). Only such a showing can overcome the presumption that the plaintiff has, in good faith, properly alleged the requisite amount. See Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961); 1 J. Moore, Moore’s Federal Practice ¶ 0.92[1], at 829 & n. 9 (2d ed. 1992); 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3702, at 54-56 (2d ed. 1985). Thus, although the plaintiff has the burden of proving the requisite amount in controversy, in practice, this burden “is not a heavy one.... [T]he plaintiff need only present allegations or proof that it is not clear to a legal certainty that [s/he] will not recover less than the jurisdictional amount.” Moore, supra, at 831 (citations omitted, emphasis in original). The amount in" }, { "docid": "4093571", "title": "", "text": "over non-tort monetary claims against the United States not exceeding $10,000. 28 U.S.C. § 1346(a)(2) (sometimes referred to as the “Little Tucker Act”). Original jurisdiction over such claims seeking more than $10,000 vests exclusively in the Claims Court. 28 U.S.C. § 1491 (the so-called “Big Tucker Act”). In order to permit plaintiffs to exercise a choice as to whether to proceed in the district court or in the Claims Court, we have permitted plaintiffs to waive damages in excess of $10,000, see Hahn, 757 F.2d at 587; Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25 (3d Cir.1975), a practice also followed by other circuits. See e.g., Shaw v. Gwatney, 795 F.2d 1351, 1356 (8th Cir.1986); Zumerling v. Devine, 769 F.2d 745, 748 (Fed.Cir.1985); Goble v. Marsh, 684 F.2d 12, 15 (D.C.Cir.1982). This effectuates the Congressional design to permit persons with comparatively small claims to bring suit in a geographically convenient court. See United States v. Hohri, — U.S. -, -, 107 S.Ct. 2246, 2249 n. 1, 96 L.Ed.2d 51, 57 n. 1 (1987). Where a non-tort monetary claim has been combined with a non-monetary claim, for example one seeking injunctive relief, we have held that even if the district court must transfer the monetary claim to the Claims Court, it can retain jurisdiction over the non-monetary claim if “the declaratory or injunctive relief a claimant seeks has significant prospective effect or considerable value apart from merely determining monetary liability of the government.” Hahn, 757 F.2d at 590 (quoting Minnesota by Noot v. Heckler, 718 F.2d 852, 858 (8th Cir.1983)). But see Matthews v. United States, 810 F.2d 109, 111-13 (6th Cir.1987) (analyzing split in circuits over ability to retain reinstatement claim after transferring back pay claim). In cases involving only monetary claims against the United States, appellate jurisdiction rests exclusively with the Federal Circuit irrespective of whether original jurisdiction was in the district court or in the Claims Court, with certain exceptions not relevant here. See 28 U.S.C. § 1295(a)(2) and (3). Similarly, when a monetary claim against the United States covered by the Little" }, { "docid": "23519279", "title": "", "text": "is in excess of the statutory jurisdictional amount.” Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994). “The amount in controversy is determined at the time the action is commenced.” Id.; see also Coventry Sewage Assocs. v. Dworkin Realty Co., 71 F.3d 1, 4 (1st Cir.1995) (in determining amount in controversy, the courts “look[] to the circumstances at the time the complaint is filed”). It is well settled that the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (emphasis added and footnotes omitted); see also Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961) (amount in controversy is determined “from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed in good faith” (internal quotation marks omitted)). A plaintiffs good faith belief as of the filing date may be ascertained by reference to the pleadings and any facts on that subject adduced in discovery: [I]f, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed],] or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. St. Paul Mercury, 303 U.S. at 289, 58 S.Ct. at 590 (footnote omitted). We have held that “the legal impossibility of recovery must be so certain as virtually to negat[e] the plaintiffs good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved ... in favor of the subjective good faith of the plaintiff.” Tongkook, 14 F.3d at 785-86 (quoting McDonald v." }, { "docid": "11550508", "title": "", "text": "from civilian employment, as to the plaintiffs in Larsen, and enlistment pay, as to the plaintiffs in Bryner. On the basis of these affidavits, plaintiffs have fashioned an ingenious argument regarding the method for determining jurisdictional amounts under sections 1346(a)(2) and 1491. The plaintiffs concede that, in the event of a favorable judgment, their individual entitlements to accrued wages and allowances from the dates of termination from active duty status would substantially exceed the Tucker Act limitation and, in most instances, would add up to more than $20,-000. It is argued, however, that the back pay and allowance claims must be diminished by that amount equal to severance pay or reinlistment bonuses received and civilian or reinlistment earnings in mitigation of damages. Once such a netting-out process has been performed, it is claimed the resulting amounts would be less than $10,000 for each plaintiff, with negative entitlements (representing amounts repayable to the government if reinstated) in the case of several plaintiffs in Larsen and all but one in Bryner. In essence, therefore, plaintiffs seek to diminish the amounts of their claims for monetary damages by anticipating the government’s possible set-offs and counter demands. We perceive substantial deficiencies in plaintiffs’ proposed formula for computing the amount of their claims for Tucker Act purposes. Under the traditional, majority rule for ascertaining jurisdictional amount in federal question and diversity litigation, the possibility of government set-offs and other demands are as irrelevant as the appearance of a valid defense reducing the amount claimed or the occurrence of an event subsequent to the complaint affecting the amount in controversy. See e. g., Schunk v. Moline, Milburne & Stoddart Co., 147 U.S. 500, 13 S.Ct. 416, 37 L.Ed. 255 (1893); Anderson v. Moorer, 372 F.2d 747 (5th Cir. 1967); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656 (1907); Tising v. Flanagin, 360 F.Supp. 283 (E.D.Wisc.1973); McDonald v. Patton, 240 F.2d 424 (4th Cir. 1957); Kansas City Philharmonic Ass’n v. Greyhound Lines, 257 F.Supp." }, { "docid": "17131962", "title": "", "text": "Provident Nat’l Bank, 994 F.2d 1039, 1044 (3d Cir.), cert. denied sub nom. Upp v. Mellon Bank, N.A., 510 U.S. 964, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). III. The Amount in Controversy Requirement For a plaintiff to establish federal diversity jurisdiction, the amount in controversy must exceed $50,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). The standard for determining whether a plaintiffs claims satisfy the amount in controversy requirement was set out by the Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), as Mows: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. Id. at 288-89, 58 S.Ct. at 590 (emphasis added) (footnotes omitted); see also Nelson v. Keefer, 451 F.2d 289, 292-93 (3d Cir.1971). In applying the “legal certainty” test established by St. Paul Mercury, this Court has stated that “dismissal is appropriate only if the federal court is certain that the jurisdictional amount cannot be met.” Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir.1995); cf. Lunderstadt v. Colafella, 885 F.2d 66, 69-70 (3d Cir.1989) (holding in a federal question case that “a federal court may dismiss for lack of juriscliction only if the claims are ‘insubstantial on their face’ ”). Once a good faith pleading of the amount in controversy vests the district court with diversity jurisdiction, the court retains jurisdiction even if the plaintiff cannot ultimately prove all of the counts of the complaint or does not actually recover damages in excess of $50,000. St. Paul Mercury, 303 U.S. at 288, 58 S.Ct. at 590. Accordingly, the question whether a plaintiffs claims pass the “legal certainty” standard is a threshold matter that should involve the court in only minimal scrutiny of the plaintifPs claims." }, { "docid": "8642952", "title": "", "text": "amount in controversy must be determined as of December 1, 1972 rather than December 11, 1974 when the amended complaint was submitted. The general rule is that the amount claimed in good faith by the plaintiff controls unless it appears to a legal certainty that the claim is for less than the jurisdictional amount or unless the amount claimed is merely colorable. See Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 589-590, 82 L.Ed. 845 (1938); Worthams, supra at 997-98. When the existence of the jurisdictional amount is disputed, appellant bears the burden of proof. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Although Sellers’ pension had been granted on November 30, 1972, he remained unaware of the decision until receiving notice on December 4, 1972. The original complaint therefore alleged in good faith that more than $10,000 was in controversy on December 1, 1972. Nevertheless, we hold that as a legal certainty, appellant was only entitled to $9,875 in benefits at the time the complaint was filed. Sellers acknowledges that after the trustees approved partial retroactive benefits, the Fund owed him only $9,875. Thus, after November 30, 1972, appellant was in fact never entitled to recover more than that amount. His claim for more than $10,-000 was therefore merely colorable. See Saint Paul Mercury, supra 303 U.S. at 289, 58 S.Ct. at 590. This conclusion is buttressed by language in Wood v. Stark Tri-County Building Trades Council, 473 F.2d 272, 273 (6th Cir.1973), which involved malicious destruction of property. The court said: The determination of the amount in controversy is fairly uncomplicated when the plaintiff seeks liquidated damages, the amount in controversy being the total of the liquidated damages. Sellers’ claim is liquidated because she seeks a specified amount of money per month from January, 1966 to May, 1972. Since the monthly payments are fixed, the total of $9,875 is also liquidated. According to Wood, that total is the amount in controversy- The Worthams case, relied upon by appellant, is" }, { "docid": "11218150", "title": "", "text": "an action is not susceptible to precise measurement (and a personal injury action is of course a paradigmatic example of that), both the litigants and the court must be keenly aware of the need to establish at least a colorable basis for plaintiffs meeting the more-than-$50,000 jurisdictional prerequisite for federal diversity-of-citizenship cases. Any failure to be attentive to that consideration can lead to a result in which the losing party—whichever side that might be—can attack the ultimate outcome even post-judgment. For a graphic example of that possibility, see Ross v. Inter-Ocean Insurance Co., 693 F.2d 659 (7th Cir.1982), in which—upon plaintiffs appeal from a summary judgment in defendant’s favor—the parties were sent back to square one to start the case all over again in the state court because the minimum jurisdictional amount could not arguably have been in controversy. For that reason this Court uniformly requires the parties, in any action where even a potential problem appears to exist as to the jurisdictional amount, to treat with that subject by demonstrating that the case is such that the plaintiff has a rational predicate for an over-$50,000 ad damnum. In that respect see the seminal case in this area, St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), which requires that “the claim is apparently made in good faith”—an objective test requiring at least a colorable assertion. As part of Griffins’ responsive submission, their counsel has provided information as to Catherine’s past and estimated future medical expenses, as well as her related claims of (1) past and future pain and suffering, (2) permanent disability and (3)loss of the quality of her life and mental anguish. Those things combined certainly establish the bona fides of the over-$50,000 ad damnum asserted for Catherine’s claim. Glenn’s loss of consortium claim stands in a different posture. Count II ¶ 3 alleges: 3. The accident and injuries caused by the negligence of Defendant have disabled the Plaintiff, Catherine A. Griffin, so that the Plaintiff, Glenn A. Griffin, has been deprived of her aid, services," } ]

[ { "docid": "14376949", "title": "", "text": "One must specify a particular commercial application, using the system life formula, in order to measure the commercial value of specific bearings. Therefore, we determined under section 771(16)(C) which home market products reasonably could be compared to the TRBs sold to the United States. 52 Fed.Reg. at 30,702-703. Section 771(16)(C), codified as 19 U.S.C. § 1677(16)(C), provides alternate criteria the ITA must use to determine “such or similar merchandise.” See supra n. 7. It defines similar merchandise as that fitting into the first of three categories “in respect of which a determination for the purposes of part II of this subtitle can be satisfactorily made.” 19 U.S.C. § 1677(16). Commerce here was unable to determine “such or similar merchandise” pursuant to 19 U.S.C. § 1677(16)(A) or (B), and was therefore statutorily required to resort to § 1677(16)(C) to determine “such or similar merchandise.” The record shows this to be precisely what Commerce did. Hence, plaintiffs’ argument cannot be earnestly espoused. With respect to plaintiffs’ contention that the ITA’s disregard of levels of trade differences is contrary to law, plaintiffs have not provided, nor has the court uncovered any support for this argument. To the contrary, this court has noted previously that there is no statutory mandate requiring Commerce to remain within the same levels of trade while effecting its “such or similar merchandise” determination. Timken II, 11 CIT at 793, 673 F.Supp. at 504. Plaintiffs, therefore, have no basis for requesting that the Court require Commerce to limit its comparisons by the level of trade in which the sales occur. In sum, upon examination of the record evidence, the Court finds ample support for the ITA’s choice of methodology. This is not an instance where the ITA has mutely and arbitrarily adopted a methodology. Instead, the record indicates that the ITA duly considered suggestions from the interested parties before adopting a methodology and provided clear, reasonable explanations for the methodology to be implemented. Accordingly, the ITA’s choice of methodology and “such or similar merchandise” determination are affirmed. Nevertheless, plaintiffs have provided some indication that Commerce may have substantially departed from" } ]

[ { "docid": "6032717", "title": "", "text": "The Department is required by 19 CFR 353.58 to compare merchandise at different levels of trade if sales at the same commercial level of trade do not permit an adequate comparison. Import Administration Policy Bulletin 92/1, July 29, 1992. Accordingly, when we were unable to compare NTN’s U.S. sales to home market sales of such or similar merchandise at the same level of trade, we attempted to find sales of such or similar merchandise at the next most similar level of trade. Final Results, 58 Fed.Reg. at 39,767-68 (emphasis added). Therefore, Commerce fulfilled its obligation to search the same level of trade for comparison of U.S. and home market sales. The Court has, on several occasions, affirmed Commerce’s selection of most similar merchandise sold in the home market when alternative levels were unavailable. See, e.g., NTN Bearing Corp., 19 CIT at -, Slip Op. 95-156 at 19-20, 903 F.Supp. at 70; NTN Bearing Corp. of Am. v. United States, 18 CIT -, -, 881 F.Supp. 584, 590-91 (1994). See also NTN Bearing Corp. of Am. v. United States, 18 CIT -, -, 858 F.Supp. 215, 220-21 (1994); Koyo Seiko Co. v. United States, 17 CIT 474, 477, 840 F.Supp. 136, 139-40 (1993), aff'd, 20 F.3d 1156 (Fed.Cir.1994). In this case, NTN has not provided, nor has the Court uncovered, any support for its argument that Commerce’s disregard of levels of trade differences is contrary to law. Hence, as NTN has shown no basis for the Court to require Commerce to limit its comparison of sales across different levels of trade in which the sales occur, this Court sustains Commerce’s comparison of sales across different levels of trade as in accordance with law. 5. Level-of-Trade Adjustment In addition to crossing levels of trade, Commerce declined to grant NTN a level-of-trade adjustment for alleged (1) price differences attributable to differences in levels of trade and (2) indirect selling expense variances according to trade levels. Final Results, 57 Fed.Reg. at 39,768. NTN claims that if Commerce may compare sales at different levels, it must make a price-based adjustment to FMV to compensate for" }, { "docid": "4212643", "title": "", "text": "Commerce agrees a remand is necessary to allow Koyo to submit documentation showing that the nature of the expenses Koyo characterized as non-operating is appropriate. Def.’s Partial Opp’n to Mots. J. Agency R. at 56-57. Torringtori maintains Commerce properly reclassified the expenses and claims Koyo’s management had ample opportunity to explain the various categories for expenses at verification. Torrington’s Opp’n to Mots. J. Agency R. at 53-56. Upon review of the record, the Court agrees with Commerce that the record contains insufficient data upon which to determine the exact nature of the expenses at issue. Consequently, this issue is remanded to Commerce to reopen the record to allow Koyo to submit documentation showing the nature of the expenses Koyo characterized as non-operating expenses. 9. Treatment of NTN’s AFB Sales Sold at Different Levels of Trade a. Comparison of Sales Across Different Levels of Trade Under 19 U.S.C. § 1677b(a)(4)(B), Commerce must compare a U.S. price and FMV that are free of distortion caused by “other differences in circumstances of sale.” To account for one such distortion, differing levels of trade, Commerce normally calculates FMV and U.S. price based on sales at the same commercial level of trade. See 19 C.F.R. § 353.58. NTN claims Commerce erred in comparing merchandise across levels of trade because it did not explain its decision to cross levels of trade and did not consider the commercial value of the merchandise sold at various levels of trade. NTN’s Mem. Supp. Mot. J. Agency R. at 16-18. Commerce responds that it compared sales at different levels of trade because it failed to match “such or similar” merchandise at the same level. Commerce further maintains that it properly considered commercial value by applying its twenty percent cost test. Def.’s Partial Opp’n to Mots. J. Agency R. at 60-63. Commerce may cross levels of trade when sales at the same level of trade are not available. See 19 C.F.R. § 353.58; see also NTN Bearing Corp. v. United States, 17 CIT 1149, 1153-55, 835 F.Supp. 646, 650 (1993). The Court concludes Commerce adequately explained its decision to cross levels" }, { "docid": "16838455", "title": "", "text": "States, 11 CIT 786, 673 F. Supp. 495 (1987). In NTN Bearing Corp., 14 CIT 623, 747 F. Supp. 726, the court refused to recognize Commerce’s argument that direct selling expenses should be deducted from the exporter’s sales price and remanded the case to Commerce to recalculate dumping margins to reflect an adjustment of foreign market value for direct selling expenses. This Court is of the same opinion and remands this case to Commerce to recalculate dumping margins to reflect an adjustment of FMV for direct selling expenses. 6. Sales Across Different Levels of Trade: Finally, Koyo claims that Commerce’s comparison of sales across different levels of trade was contrary to law and unsupported by substantial evidence. In its Final Results, the ITA stated that we first sought contemporaneous sales of identical merchandise at the same level of trade in thehome market as that ofthe U.S. sale. If we were unable to find a match, we then looked for contemporaneous sales of identical merchandise at the next level of trade. * * * If we were unable to find identical matches at the next level of trade, we then sought contemporaneous home market sales of the same family as the U.S. bearing at the same level of trade. If unsuccessful, we then sought contemporaneous home market sales of the same family at the next level of trade before using [constructed value] as the basis for FMV. Final Results, 56 Fed. Reg. at 31,755-56. On several occasions this Court has affirmed Commerce’s selection of most similar merchandise sold in the home market when alternative levels were unavailable. The Timken Co.v. United States, 10 CIT 86, 630 F. Supp. 1327 (1986); NTN Bearing Corp., 14 CIT at 634, 747 F. Supp. at 736. Likewise in this case, since alternate levels were unavailable, Commerce’s selection of similar merchandise was reasonable and in accordance with law. Conclusion In accordance with the foregoing opinion, this case is remanded to the Department of Commerce, International Trade Administration, to recalculate dumping margins pursuant to the instructions set forth in this opinion to reflect an adjustment of the" }, { "docid": "7907025", "title": "", "text": "any specific types of expenses particular to a level of trade that were so unique in the nature of these expenses rather than in quantity. See, e.g., NTN’s Mem. at 33-34. This Court has previously upheld Commerce’s recalculation of NTN’s indirect selling expenses without regard to levels of trade. See FAG Kugelfischer Georg Schafer AG v. United States, 25 CIT 74, 84, 131 F. Supp. 2d 104, 121 (2001); NTN Bearing, 24 CIT at 402, 104 F. Supp. 2d at 122; NTN Bearing II, 23 CIT at 496, 83 F. Supp. 2d at 1290-91; NTN Bearing III, 19 CIT at 1232-34, 905 F. Supp. at 1094-95 (stating that NTN’s allocation methodology does not reasonably quantify the expenses incurred at each level of trade); NSK Ltd. v. United States, 21 CIT 617, 637-38, 969 F. Supp. 34, 55 (1997), aff’d, NSK. Ltd. v. Koyo Seiko Co., Ltd., 190 F.3d 1321, 1330 (Fed. Cir. 1999). NTN’s methodology continues to be based upon unproven presumptions. See Final Results, 64 Fed. Reg. at 35,607. For these reasons, the Court sustains Commerce’s recalculation of NTN’s United States and home market indirect selling expenses without regard to levels of trade. VIII. Inclusion of Profits From EP Sales in Calculation of CEP Profit A. Background Under 19 U.S.C. § 1677a(d)(3), Commerce must, in order to calculate CEI] deduct “the profit allocated to the expenses described in” 19 U.S.C. § 1677a(d)(l) and (2) from the price charged to the first unaffiliated purchaser in the United States. “Profit” is defined as “an amount determined by multiplying the total actual profit by the applicable percentage,” 19 U.S.C. § 1677a(f)(l), and “actual profit” is defined as the “total profit earned * * * with respect to the sale of the same merchandise for which total expenses are determined * * *.” 19 U.S.C. § 1677a(f)(2)(D). The term “total expenses” means “all expenses in the first of [three] categories which applies and which are incurred by or on behalf of the foreign producer and foreign exporter of the subject merchandise and by or on behalf of the United States seller affiliated with" }, { "docid": "18611223", "title": "", "text": "for these adjustments. At the oral argument held on April 22, 1993, however, counsel for Koyo stated that it had changed its position and conceded this issue. Therefore, Commerce’s decision to treat Koyo’s post sale price adjustments, rebates and warranties as indirect selling expenses is affirmed. 3. Levels of Trade: Finally, Koyo contests Commerce’s methodology used to compare TRB models at different levels of trade. Koyo argues that Commerce erred in comparing U.S. and home market TRB models sold at different levels of trade and that the case should be remanded with instructions to Commerce to modify its methodology to ensure that U.S. and home market sales are only compared at the same level of trade. Koyo claims that Commerce’s comparison of U.S. and home market sales “across different levels of trade” is not supported by substantial evidence and is contrary to law. Koyo’s argument is meritless. During the review, Commerce initially attempted to make its comparison of sales at the same level of trade and when no identical home market sales were discovered, Commerce then searched the same level of trade for sales of the next similar model before searching the next level of trade for identical merchandise. Therefore, Koyo’s argument that Commerce failed to fulfill its obligation to search the same level of trade for comparison of U.S. and home market sales is erroneous. There is no statutory requirement that Commerce make a level-of-trade adjustment when comparing sales at different levels of trade. Furthermore, this Court on several occasions has affirmed Commerce’s selection of most similar merchandise sold in the home market when alternative levels were unavailable. See Koyo Seiko Co. v. United States, 17 CIT 2, 810 F. Supp. 1287 (1993); Timken Co. v. United States, 10 CIT 86, 630 F. Supp. 1327 (1986); NTN Bearing Corp. of America v. United States, 14 CIT 623, 747 F. Supp. 726, (1990); Timken Co. v. United States, 11 CIT 786, 673 F. Supp. 495 (1987); Koyo Seiko Co. v. United States, 16 CIT 539, 544-45, 796 F. Supp. 1526 (1992). This Court refused to recognize a “level of trade”" }, { "docid": "18611225", "title": "", "text": "argument similar to Koyo’s in NTN Bearing Corp., 14 CIT at 634, 747 F. Supp. at 736, stating: With respect to plaintiffs’ contention that the ITA’s disregard of levels of trade differences is contrary to law, plaintiffs have not provided, nor has the court uncovered any support for this argument. To the contrary, this court has noted previously that there is no statutory mandate requiring Commerce to remain within the same levels of trade while effecting its “such or similar merchandise” determination. [Citations omitted.] Plaintiffs, therefore, have no basis for requesting that the Court require Commerce to limit its comparisons by the level of trade in which the sales occur. Thus, Commerce’s comparison of sales across different levels of trade was in accordance with law. Koyo also argues that Commerce’s methodology is contrary to Article 2(6) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (“GATT”)(1979). Article 2(6) of the GATT, titled “Determination of Dumping,” specifies that: In order to effect a fair comparison between the export price and the domestic price in the exporting country (or the country of origin) or, if applicable, the price established pursuant to the provisions of Article VI: 1(b) of the General Agreement, the two prices shall be compared at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for the differences in conditions and terms of sale, for the differences in taxation, and for the other differences affecting price comparability. Id. (emphasis added). Koyo argues that compliance with the GATT mandates comparison of sales at the same level of trade. The GATT places no such limitation on Commerce’s selection of comparison merchandise. The statutory provision itself clearly makes exception and allows for the adjustment of prices when sales are made under different terms and conditions which shall have effect on the price comparability. Therefore, the discretion of the regulating authorities is clearly permitted and codified within this provision. See Koyo" }, { "docid": "20803563", "title": "", "text": "“the record did not contain ‘quantitative and narrative evidence demonstrating’ that sales at different levels incurred different amounts of the expenses.” See Timken’s Resp. at 69 (quoting Final Results, 63 Fed. Reg. at 2580). C. Analysis The Court disagrees with NTN that it adequately supported its LOT adjustment claim for its reported United States and home-market selling expenses. Although NTN purports to show that it incurred different selling expenses at different trade levels, the evidence to which it points does not show that its allocation methodology reasonably quantifies the United States and home-market selling expenses incurred at different LOTs. See NTN Bearing, 24 CIT at 403, 104 F. Supp. 2d at 131-33; NTN 19 CIT at 1234, 905 F. Supp. at 1095. Given that NTN had the burden before Commerce to establish its entitlement to an LOT adjustment, its failure to provide the requisite evidence compels the Court to conclude that it has not met its burden of demonstrating that Commerce’s denial of the LOT adjustment was not supported by substantial evidence and was not in accordance with law. See NSK Ltd. v. United States (“NSK Ltd.”), 21 CIT 617, 635-36, 969 F. Supp. 34, 55 (1997), aff’d, NSK Ltd. v. Koyo Seiko Co., Ltd. (“NSK”), 190 F.3d 1321, 1330 (Fed. Cir. 1999). Accordingly, the Court sustains Commerce’s recalculation of NTN’s United States and home market selling expenses without regard to levels of trade. IV. NTN’s Constructed Export Price Calculation A. NTN’s Constructed Export Price Calculation Without Regard to LOT 1. Background In calculating CER Commerce must reduce the starting price used to establish CEP by “the profit allocated to the expenses described in paragraphs (1) and (2)” of § 1677a(d). 19 U.S.C. § 1677a(d)(3). Under 19 U.S.C. § 1677a(f) (1994), the “profit” that is deducted from this starting price is “determined by multiplying the total actual profit by [a] percentage” calculated “by dividing the total United States expenses by the total expenses.” 19 U.S.C. § 1677a(f)(l) and (2)(A). Section 1677a(f)(2)(B) defines “total United States expenses” as the total expenses deducted under § 1677a(d)(l) and (2), that is, commissions, direct" }, { "docid": "16838456", "title": "", "text": "were unable to find identical matches at the next level of trade, we then sought contemporaneous home market sales of the same family as the U.S. bearing at the same level of trade. If unsuccessful, we then sought contemporaneous home market sales of the same family at the next level of trade before using [constructed value] as the basis for FMV. Final Results, 56 Fed. Reg. at 31,755-56. On several occasions this Court has affirmed Commerce’s selection of most similar merchandise sold in the home market when alternative levels were unavailable. The Timken Co.v. United States, 10 CIT 86, 630 F. Supp. 1327 (1986); NTN Bearing Corp., 14 CIT at 634, 747 F. Supp. at 736. Likewise in this case, since alternate levels were unavailable, Commerce’s selection of similar merchandise was reasonable and in accordance with law. Conclusion In accordance with the foregoing opinion, this case is remanded to the Department of Commerce, International Trade Administration, to recalculate dumping margins pursuant to the instructions set forth in this opinion to reflect an adjustment of the foreign market value for direct selling expenses. Commerce’s determination is affirmed in all other respects. Commerce shall report the results of the remand determination to this Court within forty-five (45) days of the date this opinion is entered." }, { "docid": "18611224", "title": "", "text": "then searched the same level of trade for sales of the next similar model before searching the next level of trade for identical merchandise. Therefore, Koyo’s argument that Commerce failed to fulfill its obligation to search the same level of trade for comparison of U.S. and home market sales is erroneous. There is no statutory requirement that Commerce make a level-of-trade adjustment when comparing sales at different levels of trade. Furthermore, this Court on several occasions has affirmed Commerce’s selection of most similar merchandise sold in the home market when alternative levels were unavailable. See Koyo Seiko Co. v. United States, 17 CIT 2, 810 F. Supp. 1287 (1993); Timken Co. v. United States, 10 CIT 86, 630 F. Supp. 1327 (1986); NTN Bearing Corp. of America v. United States, 14 CIT 623, 747 F. Supp. 726, (1990); Timken Co. v. United States, 11 CIT 786, 673 F. Supp. 495 (1987); Koyo Seiko Co. v. United States, 16 CIT 539, 544-45, 796 F. Supp. 1526 (1992). This Court refused to recognize a “level of trade” argument similar to Koyo’s in NTN Bearing Corp., 14 CIT at 634, 747 F. Supp. at 736, stating: With respect to plaintiffs’ contention that the ITA’s disregard of levels of trade differences is contrary to law, plaintiffs have not provided, nor has the court uncovered any support for this argument. To the contrary, this court has noted previously that there is no statutory mandate requiring Commerce to remain within the same levels of trade while effecting its “such or similar merchandise” determination. [Citations omitted.] Plaintiffs, therefore, have no basis for requesting that the Court require Commerce to limit its comparisons by the level of trade in which the sales occur. Thus, Commerce’s comparison of sales across different levels of trade was in accordance with law. Koyo also argues that Commerce’s methodology is contrary to Article 2(6) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (“GATT”)(1979). Article 2(6) of the GATT, titled “Determination of Dumping,” specifies that: In order to effect a fair comparison between the export price" }, { "docid": "6032716", "title": "", "text": "section. Levels of trade are referred to in Commerce’s regulation, 19 C.F.R. § 353.58 (1993) which provides: The Secretary normally will calculate foreign market value and United States price based on sales at the same commercial level of trade. If sales at the same commercial level of trade are insufficient in number to permit an adequate comparison, the Secretary will calculate foreign market value based on sales of such or similar merchandise at the most comparable commercial level of trade as sales of the merchandise and make appropriate adjustments for differences affecting price comparability. In this case, Commerce appropriately took commercial value into consideration in selecting “such or similar merchandise” for comparison and not with respect to its decision to cross levels of trade. See Commerce’s Brief at 26 n. 7 (explaining its use of the twenty percent cost test to ascertain approximate equal commercial value when matching home market and U.S. models). Further, contrary to NTN’s allegation, Commerce provided ample record explanation of its decision to cross levels of trade. Commerce’s Final Results state: The Department is required by 19 CFR 353.58 to compare merchandise at different levels of trade if sales at the same commercial level of trade do not permit an adequate comparison. Import Administration Policy Bulletin 92/1, July 29, 1992. Accordingly, when we were unable to compare NTN’s U.S. sales to home market sales of such or similar merchandise at the same level of trade, we attempted to find sales of such or similar merchandise at the next most similar level of trade. Final Results, 58 Fed.Reg. at 39,767-68 (emphasis added). Therefore, Commerce fulfilled its obligation to search the same level of trade for comparison of U.S. and home market sales. The Court has, on several occasions, affirmed Commerce’s selection of most similar merchandise sold in the home market when alternative levels were unavailable. See, e.g., NTN Bearing Corp., 19 CIT at -, Slip Op. 95-156 at 19-20, 903 F.Supp. at 70; NTN Bearing Corp. of Am. v. United States, 18 CIT -, -, 881 F.Supp. 584, 590-91 (1994). See also NTN Bearing Corp. of Am." }, { "docid": "16893775", "title": "", "text": "or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record. ” The Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp. 300, 306 (1988), aff’d, 894 F.2d 385 (Fed. Cir. 1990). 1. Sample Sale: Plaintiffs claim that Commerce erred by including Nachi’s one home market sample sale in its calculation of foreign market value. They claim that the Department ignored its established practice of excluding trial or sample sales from foreign market value. As a result, Ñachi urges this Court to remand this case to Commerce to require the Department to address Nachi’s home market sample sales argument and to explain its failure to follow its own established precedent. According to 19 U.S.C. § 1677b(a)(l) (1988 & Supp. 1992): The foreign market value of imported merchandise shall be the price, at the time such merchandise is first sold within the United States by the person for whom (or for whose account) the merchandise is imported to any other person * * * (A) at which such or similar merchandise is sold, or, in the absence of sales, offered for sale in the principal markets of the country from which exported, in the usual commercial quantities and in the ordinary course of trade for home consumption * * *. (Emphasis added.) The plaintiff has the burden of proving whether sales used in Commerce’s calculations are outside the ordinary course of trade or not sold in usual commercial quantities. See Koyo Seiko Co. v. United States, 16 CIT 539, 543, Slip Op. 92-99 (June 30, 1992) at 8; see also Monsanto Co. v. United States, 12 CIT 937, 939-42, 698 F. Supp. 275, 277-80 (1988). This Court has affirmed Commerce’s decision to include certain sales in its calculations of dumping margins when a plaintiff has failed to meet its burden of proof. Id. In this case, the administrative record is lacking substantial evidence proving that the sample sale in question was outside the ordinary course of trade or not sold in usual commercial quantities, and plaintiffs have failed" }, { "docid": "7907024", "title": "", "text": "these United States selling expenses and its methodology led to distorted allocations. See Def.’s Mem. at 78-80. Therefore, Commerce concludes that Commerce properly recalculated NTN’s United States and home market expenses without regard to levels of trade. See id. Torrington supports Commerce’s position and asserts that Commerce’s determination to reallocate NTN’s United States and home market indirect selling expenses was reasonable. See Torrington’s Resp. at 74-76. C. Analysis As Commerce had explained in the Final Results of Antidumping Duty Administrative Reviews, Partial Termination of Administrative Reviews, and Revocation in Part of Antidumping Duty Orders on Anti-friction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, 60 Fed. Reg. 10900, 10940 (Feb. 28, 1995), indirect selling expenses are fixed period costs that typically relate to all sales and do not vary according to sales value or the number of employees who allegedly sell each type of merchandise. Yet, NTN has continued to allocate its indirect selling expenses on the basis of the number of employees in certain regions, without demonstrating sufficiently that it incurred any specific types of expenses particular to a level of trade that were so unique in the nature of these expenses rather than in quantity. See, e.g., NTN’s Mem. at 33-34. This Court has previously upheld Commerce’s recalculation of NTN’s indirect selling expenses without regard to levels of trade. See FAG Kugelfischer Georg Schafer AG v. United States, 25 CIT 74, 84, 131 F. Supp. 2d 104, 121 (2001); NTN Bearing, 24 CIT at 402, 104 F. Supp. 2d at 122; NTN Bearing II, 23 CIT at 496, 83 F. Supp. 2d at 1290-91; NTN Bearing III, 19 CIT at 1232-34, 905 F. Supp. at 1094-95 (stating that NTN’s allocation methodology does not reasonably quantify the expenses incurred at each level of trade); NSK Ltd. v. United States, 21 CIT 617, 637-38, 969 F. Supp. 34, 55 (1997), aff’d, NSK. Ltd. v. Koyo Seiko Co., Ltd., 190 F.3d 1321, 1330 (Fed. Cir. 1999). NTN’s methodology continues to be based upon unproven presumptions. See Final Results, 64 Fed. Reg. at 35,607. For these reasons, the Court" }, { "docid": "13430566", "title": "", "text": "and practices which, for a reasonable time prior to the exportation of the merchandise which is the subject of an investigation, have been normal in the trade under consideration with respect to merchandise of the same class or kind.” 19 U.S. C. § 1677(15). In determining whether a sale is outside the ordinary course of trade, Commerce must consider “all the circumstances particular to the sales in question.” Cemex, S.A. v. United States, 133 F.3d 897, 900 (1988) (quoting Murata Mfg. Co. v. United States, 17 CIT 259, 264, 820 F. Supp. 603, 607 (1993)); see also Thai Pineapple Public Co. v. United States, 20 CIT 1312, 1314, 946 F. Supp. 11, 15 (1996). “An analysis of these factors should be guided by the purpose of the ordinary course of trade provision which is to prevent dumping margins from being based on sales which are not representative of the home market.” Cemex, 133 E3d at 900 (internal quotations omitted). The factors Commerce may consider in its analysis include: home market demand, volume of home market sales, sales quantity, sales price, profitability, customers, terms of sale and frequency of sales. See, e.g., Thai Pineapple, 20 CIT at 1315, 946 F. Supp. at 16; see also Cemex, S.A. v. United States, 19 CIT 587, 589-593 (1995). “In sum, ordinary course of trade is determined on a case-by-case basis by examining all of the relevant facts and circumstances.” Cemex, 19 CIT at 593. Plaintiff has the burden of proving whether the sales used in Commerce’s calculations are outside the ordinary course of trade. See, e.g., Nacho-Fujikoshi Corp. v. United States, 16 CIT 606, 608, 798 F. Supp. 716, 718 (1992) (citing Koyo Seiko Co. v. United States, 16 CIT 539, 543, 796 F. Supp. 1526, 1530 (1992)). NTN argues that because it designated certain sales under the variable “sample” in its accounting that those transactions were outside the ordinary course of trade and, therefore, should be excluded from NTN’s home market database prior to calculating weighted average prices for FMV NTN’s Mot. J. Agency R. at 9. However, a party’s mere designation of" }, { "docid": "20845895", "title": "", "text": "the discounts or rebates received on some sales, inflating them on other sales, and attributing them to still other sales that did not actually receive any at all.” NSK Ltd. v. Koyo Seiko Co., 190 F.3d 1321, 1329 (Fed. Cir. 1999) (internal quotation omitted). Therefore, the Court holds that Commerce acted reasonably when it disallowed any adjustments to FMV for NTN’s discounts under the mandate of 19 U.S.C. § 1677b(a)(l)(A). XIII. Commerce’s Reallocation of Selling Expenses Without Regard to Level of Trade and Denial of a Level of Trade Adjustment A. Background The pre-URAA law did not contain a specific provision concerning adjustments for differences in levels of trade (“LOTs”). See, e.g., NEC Home Elecs., 54 F.3d at 739. Commerce, however, provided that it would normally calculate FMV and United States price at the same commercial LOT. See 19 C.F.R. § 353.58 (1994). If such sales were insufficient in number to permit an adequate comparison, Commerce would calculate FMV based upon such or similar sales at the most comparable LOT to the LOT in the United States market “and make appropriate adjustments for differences affecting price comparability.” Id. In the Preliminary Results, Commerce: (1) accepted NTN’s proposed allocation of selling expenses by LOT; and (2) granted NTN an LOT adjustment. See 61 Fed. Reg. at 25,204. However, in the Final Results, 63 Fed. Reg. at 20,608-09, Commerce reexamined the record, reallocated NTN’s selling expenses without regard to LOT, and denied NTN an LOT adjustment, operating under the precedent set by Timken Co. v. United States (“Timken”), 20 CIT 645, 930 F. Supp. 621 (1996). B. Contentions of the Parties NTN contends that Commerce erroneously reallocated NTN’s selling expenses without regard to LOT and eliminated the LOT adjustment granted to NTN in the Preliminary Results, 61 Fed. Reg. at 25,204. See NTN’s Mem. at 14-16. NTN maintains that it provided “sufficient information to [Commerce] * * * to convince [Commerce] that NTN’s LOT-specific reporting methodology was accurate.” NTN’s Reply at 8. Commerce asserts that it acted reasonably and properly when it followed the precedent set by Timken, 20 CIT 645, 930" }, { "docid": "18611218", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiffs, Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (“Koyo”), move pursuant to Rule 56.1 for judgment on the agency record contesting the Department of Commerce, International Trade Administration’s (“Commerce”) final results in Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Certain Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Review (“FinalResults”), 56 Fed. Reg. 65,228 (1991). Plaintiffs specifically object to (1) Commerce’s failure to average U.S. prices in the same manner as it averaged foreign market values, (2) Commerce’s decision to reclassify plaintiffs’ home market post-sale price adjustments, rebates and warranty expenses as indirect selling expenses, and (3) Commerce’s methodology used to compare levels of trade. In April of 1991, Commerce published the preliminary results of its administrative review of tapered roller bearings (“TRBs”) covering the period from August 1, 1988 through July 31, 1989. Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, from Japan; Preliminary Results of Antidumping Duty Administrative Review, 56 Fed. Reg. 14,924 (1991). On December 16, 1991, Commerce published the final results of its administrative review, which are the subject of this action. Final Results, 56 Fed. Reg. 65,228. Discussion In reviewing a final determination of Commerce, this Court must uphold that determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988 & Supp. 1992). Substantial evidence has been defined as being “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “not within the Court’s domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record.” Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed. Cir. 1990). 1. Averaging of U.S. Prices: In its" }, { "docid": "13430570", "title": "", "text": "adjustment when U.S. sales were matched to home market sales across different levels of trade. Commerce denied a LOT adjustment based upon differences in prices, stating the following: [Rjespondents must quantify any price differentials that are directly attributable to differences in levels of trade. During the course of this administrative review, NTN made no attempt to quantify the degree to which differences in prices were attributable wholly or partly to differences in levels of trade. Final Results, 61 Fed. Reg. at 66,508 (internal quotations omitted). NTN argues that it provided evidence which supported a LOT adjustment and asks that the Court remand so that Commerce could state its reasons for its refusal to make an adjustment and specify what proof Commerce needs to quantify a LOT adjustment for NTN. NTN’s Mem. Supp. Mot. J. Agency R. at 13-16. NTN acknowledges that this Court has rejected its argument regarding a LOT adjustment in previous cases but asks the Court to reconsider the issue. Id. at 16. Torrington agrees with Commerce’s determination that NTN did not submit information sufficient to support a LOT adjustment. A careful review of the record indicates that NTN submitted some evidence of varying costs and expenses across different LOTs. Nonetheless, the Court upholds Commerce’s determination to deny an LOT adjustment, because NTN failed to show how LOTs account for the differences in price which NTN reported. Although NTN argues that “these distinctions in cost readily relate to the differences in price,” see NTN’s Mem. Supp. J. Agency R. at 14, NTN did not demonstrate how the differences in cost and in price were attributed to LOT. A mere declaration that the differences exist is insufficient to grant a LOT adjustment. “This Court has consistently upheld a denial of a level of trade adjustment where a respondent has failed to demonstrate that differences in price were directly attributable to differences in level of trade.” Timken Co. v. United States, 21 CIT 725 at 729, Slip Op. 97-87 at 10 (July 3, 1997) (citing Koyo Seiko Co. v. United States, 20 CIT 772, 777, 932 F. Supp. 1488, 1493" }, { "docid": "20803635", "title": "", "text": "are extraordinary for the market in question.” 19 C.F.R. § 351.102(b) (emphasis supplied). Examples of what could be considered outside the ordinary course of trade include: (1) off-quality merchandise; (2) merchandise produced according to unusual product specifications; (3) merchandise sold at aberrational prices or with abnormally high profits; (4) merchandise sold pursuant to unusual terms of sale; or (5) merchandise sold to an affiliated party not at an arm’s-length transaction. See 19 C.F.R. § 351.102(b). In determining whether a sale is outside the ordinary course of trade, Commerce must consider not just “one factor taken in isolation but rather * * * all the circumstances particular to the sales in question.” Murata Mfg. Co. v. United States, 17 CIT 259, 264, 820 F. Supp. 603, 607 (1993). Commerce’s methodology for making this determination is codified in section 351.102(b) of Commerce’s regulations. See 19 C.F.R. § 351.102(b); see also Torrington Co. v. United States (“Torrington”), 25 CIT 395, 405, 146 F. Supp. 2d 845, 861-64 (2001) (detailing Commerce’s methodology for deciding when sales are outside the “ordinary course of trade” and finding both Commerce’s interpretation of 19 U.S.C. § 1677(15) and Commerce’s methodology reasonable). In addition, plaintiff has the burden of proving whether the sales used in Commerce’s calculations are outside the ordinary course of trade. See, e.g., Nachi-Fujikoshi Corp. v. United States, 16 CIT 606, 608, 798 F. Supp. 716, 718 (1992) (citing Koyo Seiko Co. v. United States (“Koyo”), 16 CIT 539, 543, 796 F. Supp. 1526, 1530 (1992), vacated in part on other grounds, (“Koyo 1992”), 806 F. Supp. 1008 (1992). Adhering to the explanation provided by this Court in Torrington, 25 CIT 405, 146 F. Supp. 2d 845, the Court finds that in light of 19 U.S.C. § 1677(15)’s legislative purpose, Commerce’s interpretation of 19 U.S.C. § 1677(15) and exercise of its discretion by requiring additional evidence besides NTN’s response relying upon profit levels to demonstrate that sales were outside of the ordinary course of trade, that is, whether there was any transfer of ownership or consideration given for the samples, was reasonable. NTN was or should" }, { "docid": "18611227", "title": "", "text": "Seiko, 17 CIT 2, 810 F. Supp. 1287. Koyo argues that Commerce’s methodology is contrary to this Article. Even if it was, the Court of Appeals for the Federal Circuit recently stated in Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660 (Fed. Cir. 1992), that our domestic law, not the GATT, governs. The court stated: [E]ven if we were convinced that Commerce’s interpretation conflicts with the GATT, * * * the GATT is not controlling. While we acknowledge Congress’s interest in complying with U.S. responsibilities under the GATT, we are bound not by what we think Congress should or perhaps wanted to do, but by what Congress in fact did. The GATT does not trump domestic legislation; if the statutory provisions at issue here are inconsistent with the GATT, it is a matter for Congress and not this court to decide and remedy. See id. at 667; see also Algoma Steel Corp. v. United States, 865 F.2d 240, 242 (Fed. Cir. 1989), cert. denied, 492 U.S. 919 (1989). Therefore, as long as the construction is reasonable and fair, Commerce’s interpretation is permissible. See Suramerica, 966 F.2d at 665; see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 866 (1984). Thus, Commerce’s comparison of merchandise across different levels of trade is affirmed as reasonable and in accordance with law. Conclusion In accordance with the foregoing opinion, plaintiffs’ motion for judgment on the agency record is denied in all respects as Commerce’s averaging techniques and its comparison of merchandise across different levels of trade were reasonable and in accordance with law. Furthermore, regarding Commerce’s decision to treat Koyo’s post-sale price adjustments, rebates and warranties as indirect selling expenses, counsel for Koyo stated at oral argument that it had changed its position and conceded this issue. Therefore, Commerce’s determination is affirmed in all respects and this case is hereby dismissed." }, { "docid": "13430571", "title": "", "text": "information sufficient to support a LOT adjustment. A careful review of the record indicates that NTN submitted some evidence of varying costs and expenses across different LOTs. Nonetheless, the Court upholds Commerce’s determination to deny an LOT adjustment, because NTN failed to show how LOTs account for the differences in price which NTN reported. Although NTN argues that “these distinctions in cost readily relate to the differences in price,” see NTN’s Mem. Supp. J. Agency R. at 14, NTN did not demonstrate how the differences in cost and in price were attributed to LOT. A mere declaration that the differences exist is insufficient to grant a LOT adjustment. “This Court has consistently upheld a denial of a level of trade adjustment where a respondent has failed to demonstrate that differences in price were directly attributable to differences in level of trade.” Timken Co. v. United States, 21 CIT 725 at 729, Slip Op. 97-87 at 10 (July 3, 1997) (citing Koyo Seiko Co. v. United States, 20 CIT 772, 777, 932 F. Supp. 1488, 1493 (1996), NTN Bearing Corp., 19 CIT at 1232-33, 905 F. Supp. at 1094-95, NTN Bearing Corp. of Am. v. United States, 17 CIT 1149, 1154, 835 F. Supp. 646, 650 (1993)). In addition, the Court has upheld the denial of price-based LOT adjustments where the party “merely indicated variances in prices and selling expenses at the different levels of trade, without illustrating the factors to which they were attributable.” NSK, 21 CIT at 635, 969 F. Supp. at 53. Therefore, the Court finds that Commerce’s denial of a price-based LOT adjustment in this case is supported by substantial evidence and is in accordance with law. 3. Reallocation of NTN’s Selling Expenses Without Level of Trade Adjustment Based on Indirect Selling Expenses In the Final Results Commerce determined that the methods NTN used for allocating its indirect selling expenses did not bear any relationship to the manner in which NTN incurred the expenses, leading to distorted allocations. Commerce further determined that NTN’s allocations according to LOT were misplaced and that NTN could not conclusively demonstrate that" }, { "docid": "16838454", "title": "", "text": "F.2d 1571, 1575 (Fed. Cir. 1990) (quotingBendure v. United States, 554 F.2d 427, 431 (Ct. Cl. 1977)); see also Techsnabexport, Ltd. v. United States, 16 CIT 420, 425, Slip Op. 92-82 at 13-14 (1992). Thus, we turn to this issue on the merits. According to 19 U.S.C. § 1677a(e) (1988) “the exporter’s sale price shall also be adjusted by being reduced by the amount, if any, of * * *; (2) expenses generally incurred by or for the account of the exporter in the United States in selling identical or substantially identical merchandise * * *.” The Court of Appeals, however, has interpreted section 1677a(e) to refer to indirect rather than direct selling expenses. Consumer Prods. Div., 753 F.2d at 1036-38. This court has consistently held that “direct selling expenses are properly characterized as differences in circumstances of sale giving rise to an adjustment of FMV.” NTN Bearing Corp. of America v. United States, 14 CIT 623, 637, 747 F. Supp. 726, 739 (1990); Consumer Prods. Div., 753 F.2d 1033; The Timken Co. v. United States, 11 CIT 786, 673 F. Supp. 495 (1987). In NTN Bearing Corp., 14 CIT 623, 747 F. Supp. 726, the court refused to recognize Commerce’s argument that direct selling expenses should be deducted from the exporter’s sales price and remanded the case to Commerce to recalculate dumping margins to reflect an adjustment of foreign market value for direct selling expenses. This Court is of the same opinion and remands this case to Commerce to recalculate dumping margins to reflect an adjustment of FMV for direct selling expenses. 6. Sales Across Different Levels of Trade: Finally, Koyo claims that Commerce’s comparison of sales across different levels of trade was contrary to law and unsupported by substantial evidence. In its Final Results, the ITA stated that we first sought contemporaneous sales of identical merchandise at the same level of trade in thehome market as that ofthe U.S. sale. If we were unable to find a match, we then looked for contemporaneous sales of identical merchandise at the next level of trade. * * * If we" } ]

[ { "docid": "22674002", "title": "", "text": "F. 3d 197, 206 (CA5 1999); Hossaini v. Western Mo. Medical Center, 140 F. 3d 1140, 1143 (CA8 1998); Maharaj v. Bankamerica Corp., 128 F. 3d 94, 98 (CA2 1997). Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would ereate “the perception that either the first or the second court was misled,” Edwards, 690 F. 2d, at 599. Absent sue- cess in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” United States v. C. I. T. Constr. Inc., 944 F. 2d 253, 259 (CA5 1991), and thus poses little threat to judicial integrity. See Hook, 195 F. 3d, at 306; Maharaj, 128 F. 3d, at 98; Konstantinidis, 626 F. 2d, at 939. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. See Davis, 156 U.S., at 689; Philadelphia, W., & B. R. Co. v. Howard, 13 How. 307, 335-337 (1852); Scarano, 203 F. 2d, at 513 (judicial estoppel forbids use of “intentional self-contradiction ... as a means of obtaining unfair advantage”); see also 18 Wright §4477, p.782. In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts. In this case, we simply observe that the factors above firmly tip the balance of equities in favor of barring New Hampshire’s present complaint. New Hampshire’s claim that the Piseataqua River boundary runs along the Maine shore is clearly inconsistent with its interpretation of the words “Middle of the River” during the 1970’s litigation. As mentioned above, supra, at 747, interpretation of those words was “necessary” to fixing the northern endpoint of the lateral marine boundary, Report 43. New Hampshire offered two interpretations in the earlier proceeding — first agreeing with Maine in the proposed consent decree that “Middle of" } ]

[ { "docid": "12998754", "title": "", "text": "not persuaded a previous court to accept their earlier arguments about probable cause and they would not gain an unfair advantage by proceeding on their new argument. The district court did not abuse its discretion. “Judicial estoppel is an equitable doctrine invoked at a court’s discretion, designed to protect the integrity of the judicial process.” Transamerica Leasing, 430 F.3d at 1335 (citing New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 1814-15, 149 L.Ed.2d 968 (2001)). A district court may invoke the doctrine “to prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” Id. “[T]he circumstances under which judicial estoppel should be invoked are not reducible to a general formulation of principle,” but courts have traditionally looked at three factors: (1) whether a later position asserted by a party was clearly inconsistent with an earlier position; (2) whether a party succeeded in persuading a court to accept an earlier position, “so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled”; and (3) whether the party with an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. None of the three factors is satisfied. First, the new argument of Tolbert and Duarte regarding probable cause is not clearly inconsistent with their earlier arguments regarding probable cause, because a person suspected of burglary may also be suspected of loitering and prowling. Second, Tolbert and Duarte did not persuade the magistrate judge to accept their earlier arguments. Finally, because Stephens was given an opportunity to re spond to the new argument, Tolbert and Duarte did not derive an unfair advantage. IV. CONCLUSION The judgment against Stephens is AFFIRMED." }, { "docid": "18044163", "title": "", "text": "Plaintiff from proceeding. The district court agreed and granted summary judgment in an order dated April 1, 2010. Plaintiff timely appeals. On June 20, 2010, the bankruptcy trustee filed a report that abandoned the trustee’s interest in the pending discrimination action. Plaintiffs unsecured creditors did not object to that action by the trustee. On July 21, 2010, the bankruptcy court closed the reopened case. STANDARDS OF REVIEW We review de novo a grant of summary judgment. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001). We review “the district court’s application of the doctrine of judicial estoppel to the facts of [a] case for an abuse of discretion.” Id. “The district court ... necessarily abuses its discretion when it bases its decision on an erroneous legal standard.... ” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir.2012) (internal quotation marks omitted). DISCUSSION “[J]udieial estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotation marks omitted). “[I]ts purpose is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Id. at 749-50, 121 S.Ct. 1808 (citation and internal quotation marks omitted). Although judicial estoppel is “probably not reducible to any general formulation of principle, ... several factors typically inform the decision whether to apply the doctrine in a particular case.” Id. at 750, 121 S.Ct. 1808 (citations and internal quotation marks omitted). “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” Id. (internal quotation marks omitted). “A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not" }, { "docid": "3876154", "title": "", "text": "Gold’s allegation in the Deloitte & Touche case, that Win-get’s actions “were neither prohibited nor almost entirely prohibited under a penal or criminal statute,” is inconsistent with any allegation in the present cases that Winget committed any “actual fraud.” As a re-suit, Defendants argue, Gold is barred by judicial estoppel from now asserting any claims of actual fraud against Winget, and against the other Defendants, premised upon Winget’s actual fraud. The Sixth Circuit has described the doctrine of judicial estoppel in this way: “Judicial estoppel forbids a party from taking a position inconsistent with one successfully and unequivocally asserted by that same party in an earlier proceeding.” Warda v. C.I.R., 15 F.3d 533, 538 (6th Cir.1994). “Federal standards govern the application of judicial estoppel in federal court.” Id. at n. 4 (citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 n. 4 (6th Cir.1982)). The Supreme Court has developed three factors we are to consider when determining whether to apply the doctrine of judicial estoppel. See New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir.1999)). Second, we may consider whether the party had successfully persuaded a court to accept his previous position, “so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that the first or the second court was misled.’ ” Id. (quoting Edwards, 690 F.2d at 599). Finally, we may consider “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808, 149 L.Ed.2d 968. We have placed particular emphasis on the second factor, stating that “judicial estop-pel governs a dispute only if the first court ‘adopted the position urged by the party, either as a preliminary matter or as part of a final disposition.’ ” Warda, 15 F.3d at 538 (quoting Teledyne Indus. v. National Labor Relations" }, { "docid": "11281884", "title": "", "text": "195 F.3d 299, 306 (C.A.7 1999); In re Coastal Plains, Inc., 179 F.3d 197, 206 (C.A.5 1999); Hossaini v. Western Mo. Medical Center, 140 F.3d 1140, 1143 (C.A.8 1998); Maharaj v. Bankamenca Corp., 128 F.3d 94, 98 (C.A.2 1997). Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” Edwards, 690 F.2d at 599. Absent success in a prior proceeding, a party’s later inconsistent position intro duces no “risk of inconsistent court determinations,” United States v. C.I.T. Constr. Inc., 944 F.2d 253, 259 (C.A.5 1991), and thus no threat to judicial integrity. See Hook, 195 F.3d at 306; Maharaj, 128 F.3d at 98; Konstantinidis, 626 F.2d at 939. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. See Davis, 156 U.S. at 689, 15 S.Ct. 555, 39 L.Ed. 578; Philadelphia, W., & B.R. Co. v. Howard, 13 How. 307, 335-337, 14 L.Ed. 157 (1851); Scarano, 203 F.2d at 513 (judicial estop-pel forbids use of “intentional self-contradiction ... as a means of obtaining unfair advantage”); see also 18 Wright § 4477, p. 782. In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts. In this case, we simply observe that the factors above firmly tip the balance of equities in favor of barring New Hampshire’s present complaint. New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 1815, 149 L.Ed.2d 968 (2001). This court has restricted the application of judicial estoppel to cases where the court relied on, or “accepted,” the party’s previous inconsistent position. Interstate Fire & Casualty Co. v. Underwriters at Lloyd’s, London, 139 F.3d 1234, 1239 (9th Cir.1998); Masayesva v. Hale, 118 F.3d 1371, 1382 (9th Cir.1997). The application of" }, { "docid": "29651", "title": "", "text": "in the United States, while reporting an income of less than $6,000 per year in 1996 and 1997,” id. at 3. Whether Lazarenko still possesses any of that $326 million is not relevant because his “ability to pay is not a component of the Eighth Amendment proportionality analysis.” Duckworth v. United States ex rel. Locke, 705 F.Supp.2d 30, 48 (D.D.C. 2010). There are no facts that Lazarenko could add to his excessive fine affirmative defense to convince the Court that the potential amount of the forfeiture in this in rem proceeding (approximately $250 million) is “grossly disproportional” to his criminal offenses because a jury has found that he received proceeds from his criminal activity that are well in excess of the amount of forfeiture. The Court therefore concludes that it would be futile to permit an amendment to add Lazarenko’s excessive fine affirmative defense. 2. Judicial Estoppel “Judicial estoppel ‘prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.’ ” Marshall v. Honeywell Tech. Sys. Inc., 828 F.3d 923, 928 (D.C. Cir. 2016) (quoting New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). “Because the rule is intended to prevent improper use of judicial machinery, judicial estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (internal quotation marks omitted). The Supreme Court has enumerated three non-exhaustive factors that inform the Court’s decision of whether to invoke the rule: (1) “a party’s later position must be clearly inconsistent with its earlier position”; (2) “whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled”; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750-51, 121" }, { "docid": "23613287", "title": "", "text": "Transamerica asserts that Underwriters should have been judicially es-topped from arguing that a container leasing company is a loss payee under the relevant policies because they had previously taken the opposite position in other cases before different courts. Trans-america contends that the district court erred by not applying the doctrine of judicial estoppel and by refusing to admit evidence indicating the positions Underwriters had taken in the previous cases. Judicial estoppel is an equitable doctrine invoked at a court’s discretion, designed to protect the integrity of the judicial process. See New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 1814-15, 149 L.Ed.2d 968 (2001). The doctrine may be applied to prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. See id. at 749, 121 S.Ct. at 1814. We have examined two factors in deciding whether judicial estoppel should apply: first, it must be established that the allegedly inconsistent positions were made under oath in a prior proceeding; and, second, the inconsistencies must have been calculated to make a mockery of the judicial system. Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002). In New Hampshire, the Supreme Court noted that although the circumstances under which judicial estoppel should be invoked are not reducible to a general formulation of principle, courts have traditionally looked at three basic factors: 1) whether a party’s later position was clearly inconsistent with its earlier position; 2) whether the party succeeded in persuading a court to accept the party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled; and 3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. 532 U.S. at 750-51, 121 S.Ct. at 1815. The Court observed that these factors do not establish “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel”; rather," }, { "docid": "29652", "title": "", "text": "Marshall v. Honeywell Tech. Sys. Inc., 828 F.3d 923, 928 (D.C. Cir. 2016) (quoting New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). “Because the rule is intended to prevent improper use of judicial machinery, judicial estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (internal quotation marks omitted). The Supreme Court has enumerated three non-exhaustive factors that inform the Court’s decision of whether to invoke the rule: (1) “a party’s later position must be clearly inconsistent with its earlier position”; (2) “whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled”; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750-51, 121 S.Ct. 1808 (internal quotation marks omitted). Unlike Lazarenko’s excessive fine affirmative defense, his judicial estoppel offense may not be legally meritless. La-zarenko’s amended answer pleads it in such a bare bones fashion, however, that it fails under either the heightened plausibility pleading standard or the former notice pleading standard. Lazarenko’s motion in support of leave to file his amended answer suggests but one concrete example of judicial estoppel: the United States claims now, in alleged contradiction with its position in Lazarenko’s criminal case, “that the prices that the Ukrainian Cabinet of Ministers paid in the prefabricated home sales ‘scheme’ were grossly inflated.” Mot. at 4 n.4. As an initial matter, Lazarenko should have pled this example in his proposed answer and not in the motion in support of leave to file. Even so, this assertion does not demonstrate that the United States has taken “clearly inconsistent” positions because, by Lazarenko’s own admission, “the government had previously not raised that issue in the criminal case.” Mot. at 4 n.4. The Court concludes that it would be" }, { "docid": "2543569", "title": "", "text": "prevents him from pursuing a racial discrimination claim in the District court, having sworn to the Bankruptcy court that no claims existed. (Doc. 41-1, p. 3). 1. Statement of the Law “Judicial estoppel is an equitable doctrine invoked at a court’s discretion.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002) (citing New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). This doctrine “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” New Hampshire, 532 U.S. at 749, 121 S.Ct. 1808 (internal quotations omitted). Although there are no “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel,” the U.S. Supreme Court has elucidated several factors which typically inform the decision whether or not to apply judicial estoppel in a particular case. Id. at 751, 121 S.Ct. 1808. “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. at 750, 121 S.Ct. 1808 (string citation omitted). “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was misled ... ’ ” Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)). “[T]hird ... is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 751, 121 S.Ct. 1808 Courts in the Eleventh Circuit consider two additional factors in applying the doctrine of judicial estoppel to a particular case. “First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002). However, these two factors are not “inflexible or exhaustive,”" }, { "docid": "23667626", "title": "", "text": "v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)) (alteration omitted). Some commentators have suggested, however, that judicial estoppel “is not so much a single doctrine as a set of doctrines that have not matured into a fully coherent theory.” 18B Wright & Miller, Fed. Prac. & Proc. Juris. § 4477 (2d ed.2012). The Supreme Court has provided little guidance on the contours of judicial estoppel. It has acknowledged that circumstances where the doctrine may apply “are probably not reducible to any general formulation.” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808. In New Hampshire, however, the Court identified three factors that courts should consider in determining whether the doctrine is applicable in a given case: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (citations and quotations omitted). In precedent that predates New Hampshire, we have held that the doctrine of judicial estoppel applies “when a party’s position is tantamount to a knowing misrepresentation to or even fraud on the court.” Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235 F.3d 1184, 1190 (9th Cir.2000) (quoting Johnson, 141 F.3d at 1369 (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir.1996))). A. Relying on Wyler Summit, 235 F.3d at 1190, Monroe LLC contends that we must find “a knowing antecedent misrepresentation by the person or party alleged to be estopped,” and that the district court erred when it held that Frosch’s now-disavowed statements about Monroe’s domicile were knowing misrepresentations. It is unclear when Monroe LLC" }, { "docid": "17238075", "title": "", "text": "the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle. Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Id. at 750-51, 121 S.Ct. 1808. (internal citations and quotation marks omitted). Although we have recognized that “[t]ypi-cally” the application of judicial estoppel requires showing unfair advantage against the party seeking estoppel, DeRosa v. Nat'l Envelope Corp., 595 F.3d 99, 103 (2d Cir.2010) (requiring a party to show a clearly inconsistent position, adoption of that position by a court in an earlier proceeding, and unfair advantage against the party seeking estoppel in the ADA context), we have not required this element in all circumstances. See Maharaj v. Bank-america Corp., 128 F.3d 94, 98 (2d Cir. 1997) (not requiring the element of unfair advantage); Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.1999) (same). This is consistent with New Hampshire’s admonishment that the application of the judicial estoppel doctrine depends heavily on the “specific factual context ]” before the court. 531 U.S. at 751, 121 S.Ct. 1043. We do note, though, that every case emphasizes that “[b]ecause the doctrine is primarily concerned with protecting the judicial process, relief is granted only when the risk of inconsistent results with its impact on judicial integrity is certain.” Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 397 (2d Cir.2011) (internal quotation marks omitted). Our holding" }, { "docid": "15004620", "title": "", "text": "does protect the documents, whether an exception applies in regards to plaintiffs second concern because plaintiff is judicially estopped from raising this argument. ii. Judicial Estoppel Judicial estoppel is a rule that prevents a party from taking one position in one legal proceeding, succeeding in that position, and then later taking a contrary position. See Mason v. United States, 956 A.2d 63, 66 (D.C.2008) (“[J]udicial estoppel, generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.”). The Supreme Court has stated, and this Court has adopted that, while “the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” [] several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled[.]” Absent success in a prior proceeding, a party’s later inconsistent position introduces “no risk of inconsistent court determinations,” and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. See Prince Constr. Co. v. District of Columbia Contract Appeals Bd., 892 A.2d 380, 386-87 n. 7 (D.C.2006) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (citations omitted)). Plaintiffs position is clearly inconsistent with his earlier position. Earlier in this litigation plaintiff asked for a court order requiring David Ashenfelter, the Detroit Free Press reporter, to appear for a deposition. (Def.’s Surreply in Opp’n to Pl.’s Mot. to Compel at 10-11.) Plaintiff argued before the court that (1) it could not make a case without knowing the" }, { "docid": "6634251", "title": "", "text": "to Niemann — which if true would be a complete defense because her claim against Niemann is frivolous — only to turn around and argue in the state court that her claim against the diverse defendants was not subject to the learned-intermediary doctrine after all and so her claim against them should survive Niemann’s dismissal. A litigant is not permitted to advance a ground in one lawsuit, prevail on that ground, and in a later lawsuit against the same party seek a judgment based on a repudiation of its earlier position. New Hampshire v. Maine, 532 U.S. 742, 749-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); FCC v. Airadigm Communications, Inc., 616 F.3d 642, 661 (7th Cir. 2010); People v. Runge, 234 Ill.2d 68, 334 Ill.Dec. 865, 917 N.E.2d 940, 976-77 (2009). For reasons we don’t understand, the cases are coy about defining the doctrine; typical is the statement in New Hampshire v. Maine that “courts have observed that ‘[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.’ Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be ‘clearly inconsistent’ with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was misled.’ Absent success in a prior proceeding, a party’s later inconsistent position introduces no ‘risk of inconsistent court determinations,’ and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts.” 532 U.S. at 750-51, 121 S.Ct. 1808 (citations omitted)." }, { "docid": "18420095", "title": "", "text": "doctrine “is intended to protect the integrity of the judicial process, it is an equitable doctrine invoked by a court at its discretion.” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). Judicial estoppel is most commonly applied to bar a party from making a factual assertion in a legal proceeding which directly contradicts an earlier assertion made in the same proceeding or a prior one. Id. “Judicial estoppel is an extraordinary remedy to be invoked when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.” Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir.1996)(internal quotation omitted). It “is not meant to be a technical defense for litigants seeking to derail potentially meritorious claims, especially when the alleged inconsistency is insignificant at best and there is no evidence of intent to manipulate or mislead the courts.” Id. In Johnson v. Lindon City Corp., 405 F.3d 1065, 1069 (10th Cir.2005), the Tenth Circuit reviewed factors typically used to determine when to apply judicial estoppel: First, “a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. (citation omitted). Moreover, the position to be estopped must generally be one of fact rather than of law or legal theory. Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.1996). Second, “whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding ‘would create the perception that either the first or the second court was misled.’ ” New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (citation omitted). The requirement that a previous court has accepted the prior inconsistent factual position “ensures that judicial estoppel is applied in the narrowest of circumstances.” Lowery, 92 F.3d at 224. Third, “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” New Hampshire, 532 U.S. at 751, 121 S.Ct. 1808, 149 L.Ed.2d 968. The Court does not view Plaintiffs’ position as clearly inconsistent with" }, { "docid": "11281883", "title": "", "text": "v. University of California, 192 F.3d 1252, 1255 (9th Cir.1999). DISCUSSION Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position. Rissetto v. Plumbers & Steamfitters Local 34-3, 94 F.3d 597, 600-601 (9th Cir.1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). This court invokes judicial estoppel not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of “general consideration^] of the orderly administration of justice and regard for the dignity of judicial proceedings,” and to “protect against a litigant playing fast and loose with the courts.” Russell, 893 F.2d at 1037. The United States Supreme Court recently listed three factors that courts may consider in determining whether to apply the doctrine of judicial estoppel: [S]everal factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. United States v. Hook, 195 F.3d 299, 306 (C.A.7 1999); In re Coastal Plains, Inc., 179 F.3d 197, 206 (C.A.5 1999); Hossaini v. Western Mo. Medical Center, 140 F.3d 1140, 1143 (C.A.8 1998); Maharaj v. Bankamenca Corp., 128 F.3d 94, 98 (C.A.2 1997). Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” Edwards, 690 F.2d at 599. Absent success in a prior proceeding, a party’s later inconsistent position intro duces no “risk of inconsistent court determinations,” United States v. C.I.T. Constr. Inc., 944 F.2d 253, 259 (C.A.5 1991), and thus no threat to judicial integrity. See Hook, 195 F.3d at 306; Maharaj, 128 F.3d at 98; Konstantinidis, 626 F.2d at 939. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. See Davis," }, { "docid": "9793994", "title": "", "text": "it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’ ” New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1895)). The Supreme Court, exercising its original jurisdiction over a boundary dispute between New Hampshire and Maine, identified “several factors” that “typically inform the decision whether to apply the doctrine in a particular case”: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (internal quotation marks and citations omitted). In “enumerating these factors,” the Court cautioned that it was not establishing “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel.” Id. The Court concluded that judicial estoppel applied to prevent New Hampshire from re-litigating its eastern boundary with Maine, where New Hampshire would be taking a position in consistent with a consent decree it entered into in 1977. Id. at 756, 121 S.Ct. 1808. Our circuit has consistently limited the application of judicial estoppel to “situations where a party both takes a position that is inconsistent with one taken in a prior proceeding, and has had that earlier position adopted by the tribunal to which it was advanced.” Stichting v. Schreiber, 407 F.3d 34, 45 (2d Cir.2005); Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.2004) (same); Adler v. Pataki, 185 F.3d 35, 41 n. 3 (2d Cir. 1999) (same). Moreover, we “limit[] the doctrine of judicial estoppel to situations where the risk of inconsistent results with its impact" }, { "docid": "22320839", "title": "", "text": "reasons for that denial. The premise, therefore, that the government misled this Court is based on nothing but conjecture. This is particularly so in light of the independent and sufficient ground for denying the motion, to wit, the well-established rule that the failure to identify or argue an issue in an opening brief constitutes waiver of that issue on appeal. See In re Surrick, 338 F.3d at 237. For this reason, moreover, Pelullo’s invocation of judicial estoppel is unavailing. In New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), the Supreme Court noted that: several factors typically inform the decision whether to apply that doctrine in a particular case: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent po sition in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (internal quotations and citations omitted). Inasmuch as Pelullo cannot show that this Court accepted the government’s representation in denying his motion to file a supplemental brief, there is “no risk of inconsistent court determinations” and “little threat to judicial integrity.” Id. at 751, 121 S.Ct. 1808; see also Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 778 (3d Cir.2001) (“Judicial estoppel’s sole valid use ... is to remedy an affront to the court’s integrity.”). Thus, an integral factor justifying the application of judicial estoppel is clearly absent. See Bulger, 243 F.3d at 778 (holding that judicial estoppel is not appropriate where “the initial claim was never accepted or adopted by a court" }, { "docid": "8259659", "title": "", "text": "New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (quoting Allen v. Zurich Insurance Co., 667 F.2d 1162, 1166 (4th Cir.1982)). The Supreme Court observed, however, that courts generally consider three factors when determining whether to apply the doctrine of judicial estoppel in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. ... Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” [Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir.1982) ].... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808. These factors, the Court emphasized, are not “inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel.” Id. at 751, 121 S.Ct. 1808. Rather, they serve as guideposts and “[additional considerations may inform the doctrine’s application in specific factual contexts.” Id. Many courts have applied the doctrine of judicial estoppel to bar plaintiffs from pursuing claims — including employment discrimination claims — because those plaintiffs failed to disclose the existence of their claims to bankruptcy courts in prior or parallel bankruptcy proceedings. See Becker v. Verizon North, Inc., No. 06-2956, 2007 WL 1224039, at *4 (7th Cir. Apr. 25, 2007) (plaintiff/debtor failed to disclose employment discrimination claims to bankruptcy court; court affirmed the district court’s grant of summary judgment on judicial estoppel and standing grounds); Tyler v. Federal Express Corp., 206 Fed.Appx. 500, 500 (6th Cir.2006) (affirming on judicial estoppel grounds); Baker v. Dep’t of Interior, 125 Fed.Appx. 151, 151 (9th Cir.2005) (same); Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir.2005) (“Judicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues" }, { "docid": "6634252", "title": "", "text": "general formulation of principle.’ Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be ‘clearly inconsistent’ with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was misled.’ Absent success in a prior proceeding, a party’s later inconsistent position introduces no ‘risk of inconsistent court determinations,’ and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts.” 532 U.S. at 750-51, 121 S.Ct. 1808 (citations omitted). But there is only one possible doubt about the applicability of the doctrine to this case: while judicial estoppel is usually understood to require that the first litigation have been a separate lawsuit that ended in a judgment or settlement, McNamara v. City of Chicago, 138 F.3d 1219, 1225 (7th Cir.1998), in this case had the plaintiff prevailed the sequel would have been the transfer of an existing lawsuit to another court rather than the filing of a brand-new suit. But that should make no difference to the applicability of the doctrine. Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir.1998). Though “usually applied to successive suits, ... it is not so limited.” Continental Illinois Corp. v. Commissioner, 998 F.2d 513, 518 (7th Cir. 1993) (citations omitted). Its purpose is to deter fraud in litigation, see, e.g., Carnegie v. Household Int’l, Inc., 376 F.3d 656, 660 (7th Cir.2004), which is a good description of advancing a ground for relief in one stage of a lawsuit with the undisclosed intention of arguing against it in" }, { "docid": "23157599", "title": "", "text": "verdicts were not irreconcilable, the defendants are now estopped from asserting that they are inconsistent and are now estopped from asserting that we should not rely on the jury verdict for claim 9. In response, the defendants contend that the language in footnote 2 of the Opposition indicates that they admitted to the trial court that there was an inconsistency, and therefore they are not now changing their position. Whether judicial estoppel applies is a matter of regional circuit law. Wang Labs., Inc. v. Applied Computer Sciences, Inc., 958 F.2d 355, 358, 22 USPQ2d 1055, 1058 (Fed.Cir.1992). In this case the law of the Fifth Circuit applies. Recently, in In re Coastal Plains, Inc., the Fifth Circuit articulated the theory behind judicial estoppel. 179 F.3d 197 (5th Cir.1999). “The purpose of the doctrine is to ‘protect the integrity of the judicial process’, by ‘prevent[ing] parties from playing fast and loose with the courts to suit the exigencies of self interest’.” Id. at 205 (citing Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988)). The Supreme Court, in Neiu Hampshire v. Maine, recently explained that several factors inform the decision of whether to apply the estoppel doctrine in a particular case. 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The Court recited a flexible, non-exhaustive list: First, a party’s later position must be “clearly inconsistent” with its earlier position .... Second,' courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” ... Absent success in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” ... and thus poses little threat to judicial integrity.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. (citations omitted). In this case the position the defendants presented to the district" }, { "docid": "14667240", "title": "", "text": "quotations and citations omitted). “The circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.” Id. at 750, 121 S.Ct. 1808. Three factors, while not “an exhaustive formula for determining the applicability of judicial estoppel,” aid a court in determining whether to apply the doctrine. Id. at 751, 121 S.Ct. 1808. The three factors are as follows: First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51, 121 S.Ct. 1808 (internal quotations and citations omitted). In the bankruptcy context, a party may be judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements. Coastal, 179 F.3d at 208. A debt- or’s failure to list a claim in the “mandatory bankruptcy filings is tantamount to a representation that no such claim existed.” In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir.2004). For example, in United States ex rel. Gebert v. Transp. Admin. Servs., 260 F.3d 909 (8th Cir.2001), two former employees of a company who were terminated from their job filed a qui tarn lawsuit against the company. Id. at 912. The company subsequently filed a motion for summary judgment, alleging that the claim was prohibited under judicial estoppel principles because the two employees, who were married, failed to list a claim against the company as an asset in their prior bankruptcy proceeding in which the bankruptcy court discharged" } ]

[ { "docid": "5686071", "title": "", "text": "OPINION BIUNNO, District Judge. This is an appeal from a decision of the Bankruptcy Court filed July 6, 1981, pursuant to Bankruptcy Rule 12-43. The debtor Briarcliff is landlord and debtor in possession of a luxury apartment building. On August 3,1977 Briarcliff filed a Chapter XII petition for real property arrangement under the Bankruptcy Act of 1898 as amended. By order of the Bankruptcy Court dated August 12, 1977 Briar-cliff was designated debtor in possession. The present controversy grows out of the debtor’s conversion of the building’s electrical metering system from a master meter system to individual meters for the apartments. Under this new system each tenant now pays for his own electrical use. The Briarcliff Tenants’ Association then filed a complaint with the Rent Leveling Board of the Borough of Cliffside Park. The tenants’ complaint alleged that the change requiring them to pay individual utility charges amounted to a rental increase in excess of the amount permitted by Rent Leveling Ordinance of the Borough. The debtor then filed a motion with the bankruptcy judge to stay the Rent Leveling Board proceedings under the automatic stay provisions of Rule 12-43(a) of the Rules of Bankruptcy Procedure. The bankruptcy judge denied the motion, with a stay granted pending appeal. Debtor appealed to this court. The notion that the automatic stay is determinative of the outcome of an action which involves government regulatory functions is a red herring, which in recent years has led courts which have had to deal with this issue down the wrong path. Section 11 of the Bankruptcy Act establishes the basic automatic stay in all bankruptcy cases. The automatic stay of Section 11 was created to stop the outflow of assets from a bankrupt’s estate, and to give debtors relief from harassment by creditors, in order that he may effect his discharge. Collier on Bankruptcy § 11-02. The outflow of assets from a bankrupt’s estate is stopped by the stay under Section 11 by restraining suits against a bankrupt which litigate claims which are dischargeable in bankruptcy. In Re S. W. Straus & Co., 6 F.Supp. 547" } ]

[ { "docid": "23270632", "title": "", "text": "Matter of American Associated Systems, Inc., 373 F.Supp. 977 (E.D.Ky.1974). Thus, Congress has explicitly expressed its intention that a debtor is not to have carte blanche authority to ignore nonbankruptcy law. 28 U.S.C. § 959(b). Fidelity Mortgage Investors, cited by Appellee, is not inapposite, since the Second Circuit found that the suit filed by the creditors in that case was for the purpose of enhancing their position in the reorganization proceedings, rather than to redress torts occurring in the post-petition operation of the debtor’s business. Id. at 57. It has been held that 28 U.S.C. § 959 creates an express exception to the automatic stay imposed by section 362(a). See, e.g., In re Campbell, 13 B.R. 974, 976 (Bankr.D.Idaho 1981). The better view is that the statutes can be harmonized. However, the Bankruptcy Court (Texas) essentially relied upon the automatic stay, and did not attempt to harmonize the two statutes, since it adopted the debtor’s view that 28 U.S.C. § 959 was inapplicable to the N.M.I. lawsuit. Nevertheless, “the reorganization court may not properly by blanket injunction foreclose the bringing of suits within the terms of section 959.” In re Kish, 41 B.R. at 622. Although the reorganization court unquestionably retains discretion to enjoin suits filed pursuant to 28 U.S.C. § 959, Congressional intent is to be given effect unless compelling equitable considerations support injunctive relief. The automatic stay cannot be relied upon to vitiate the clear and dispositive legislative decision to allow direct action in suits such as that of Appellants. Section 362 of the Code, which stays actions against the debtor and against property of the estate, does not forbid actions against a debtor’s codefend-ants. Therefore, the sole statutory basis for issuance of a stay against a debtor’s codefendants is section 105 of the Code. Under this provision, bankruptcy courts have used injunctive power to provide temporary protection for a debtor’s codefendants. See, e.g., Otero Mills, Inc. v. Security Bank & Trust (In re Otero Mills, Inc.), 21 B.R. 777 (Bankr.D.N.Mex.), aff'd, 25 B.R. 1018 (D.N.Mex.1982). Since the Fifth Circuit has recently explicated the limited nature of discretionary" }, { "docid": "6460725", "title": "", "text": "funding contributions and for termination liability back to contingent claims against LTV Steel and reinstating LTV Steel’s ongoing statutory obligations as a sponsor of qualified plans under ERISA. Restoration alone cannot result in immediate involuntary payments from LTV’s assets to meet minimum funding requirements, nor can restoration cause a direct change in the possession or control of any of LTV’s assets. Finally, whether restoration will serve as a condition precedent to an ultimate increase in the PBGC’s claims against LTV is a question not yet ripe for resolution. Therefore, neither restoration nor the Enforcement Action vio late the automatic stay provisions of the Code. IV. Section 362(b)(4) of the Code Exempts Restoration Even if restoration could be deemed to constitute a violation of the automatic stay, the PBGC’s decision to restore the Plans falls within the exemption from the automatic stay found in section 362(b)(4) of the Code for police or regulatory actions taken to protect the public health and welfare. The stay provisions of section 362(a) do not “change the business and regulatory environment in which a debtor operates,” In re Beker Indus. Corp., 57 B.R. at 624, or give a debtor “carte blanche to ignore non-bankruptcy law,” Midlantic Nat’l Bank v. New Jersey Dep’t of Environmental Protection, 474 U.S. 494, 502,106 S.Ct. 755, 760, 88 L.Ed.2d 859 (1986). Congress made this clear by “expressly providing] that the automatic stay provisions of the Bankruptcy Code do not apply when the government is seeking to enforce its police or regulatory power.” United States v. Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1086 (3d Cir.1987). Thus, section 362(b)(4) of the Code provides that the filing of a bankruptcy petition does not operate as a stay: under subsection (a)(1) of [section 362] of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power. 11 U.S.C. § 362(b)(4). Leaving aside for the moment questions as to the appropriateness of the procedures followed by the PBGC in restoring the Plans and as to the merits of the restoration decision, there is no dispute" }, { "docid": "1781706", "title": "", "text": "sought from the bankruptcy court a stay against the proceedings of the local rent control board pertaining to an allegedly illegal rent increase. Id. The bankruptcy court denied the motion and the district court affirmed. The district court in The Briarcliff expressly relied on the limits of the stay under the Act, holding that the stay was inapplicable because “[t]he action of the Cliffside Park Rent Leveling Board is not a proceeding which will litigate a claim dischargeable in bankruptcy.” Id. at 866. As an alternate ground for affirmance, The Briarcliff district court concluded that 28 U.S.C. section 959(b), as interpreted in Gillis and its progeny, prevented a bankruptcy court from interfering with the functioning of the rent control board. 15 B.R. at 868. Because the debtor in possession/landlord had asked for relief beyond the power of the court, the motion could not be granted. Id. While The Briarcliff represents a correct application of 28 U.S.C. section 959(b), it sheds no light on the relationship between that provision and the broad automatic stay provisions of the Bankruptcy Code. None of the Code cases the appellees rely upon holds that 28 U.S.C. section 959(b) is an exception to 11 U.S.C. section 862(a). Some merely stand for the uncontroversial proposition that a trustee must carry out his duties in conformity with state law. See Midlantic Nat’l Bank v. New Jersey Dept. of Envtl Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) aff'g, In re Quanta Resources Corp., 739 F.2d 912 (3rd Cir.1984) (trustee may not abandon property in violation of state environmental laws); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579 (6th Cir.1990) (state law landlord duties not preempted by Bankruptcy Code); Saravia v. 1736 18th Street, N.W., Ltd. Partnership, 844 F.2d 823, 826-27 (D.C.Cir.1988) (local housing code applies to debtor in possession). Furthermore, not one of these cases involves the automatic stay. Three of the cases that appellees contend demonstrate that section 959(b) is an exception to 11 U.S.C. section 362(a) do involve the automatic stay: Cournoyer v. Town of Lincoln, 790 F.2d 971 (1st Cir.1986); Wilner" }, { "docid": "10235958", "title": "", "text": "the Supremacy Clause, courts are not to condemn them to the oblivion of preemption doctrine “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Congress has evinced no such intent in enacting section 365(h); indeed, section 959(b) looks in exactly the opposite direction. Nor will the general bankruptcy policy of fostering the rehabilitation of debtors serve to preempt otherwise applicable state laws dealing with public safety and welfare. This, we believe, is the import of 28 U.S.C. § 959(b). Further buttressing this view is 11 U.S.C. § 362(b)(4) (1982), which provides a “police power” exception to the automatic stay otherwise imposed in all actions against debtors. Indeed, dictum from the Supreme Court in Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986), virtually compels this conclusion. There, the Court stated: Title 28 U.S.C. 959(b) provides ... evidence that Congress did not intend for the Bankruptcy Code to preempt all state laws. Section 959(b) commands the trustee to “manage and operate the property in his possession ... according to the requirements of the valid laws of the State.” ... [T]he section ... supports our conclusion that Congress did not intend for the Bankruptcy Code to preempt all state laws that otherwise constrain the exercise of a trustee’s powers. 474 U.S. at 505, 106 S.Ct. at 761-62 (footnote omitted). Section 959(b) was not directly at issue in Midlantic, which dealt with abandonments of property under the bankruptcy code, because the Court viewed the statute as applying only to operating businesses, not ones that were in the process of being liquidated. In this case, however, section 959(b) is indeed apposite, and we find it difficult to see any way of avoiding the clear import of the Court’s dictum in Midlantic: 28 U.S.C. § 959(b) provides clear evidence that Congress did not intend to allow Chapter 11 to serve as an automatic shield from state laws regulating health and safety. Thus, the debtor is" }, { "docid": "1781708", "title": "", "text": "Wood Products v. Maine Dept. of Envtl. Protection, 128 B.R. 1 (D.Me.1991); Will Rogers Jockey & Polo Club, Inc. v. Oklahoma Horse Racing Comm’n (In re Will Rogers Jockey & Polo Club, Inc.), 111 B.R. 948 (Bankr.N.D.Okla.1990). However, in all three of these eases one or both of the governmental powers exceptions to the automatic stay were found to be applicable. The Coumoyer and Will Rogers courts relied upon 28 U.S.C. section 959(b) merely as support for their conclusions that there was no conflict between federal and state policy interests in allowing for state regulation under the governmental powers exceptions. See 790 F.2d at 977; 111 B.R. at 955. In Wilner Wood the district court determined that 28 U.S.C. section 959(b) prevented a bankruptcy court from enjoining under its inherent equitable powers, 11 U.S.C. section 105(a), a state regulatory action that came within the governmental powers exception to the automatic stay. 128 B.R. at 2-3. Thus, none of these eases holds that section 959(b) functions as an independent exception to the automatic stay. We decline to do so as well. Congress crafted several .explicit exceptions to the automatic stay, two of which address the needs of governmental regulation. Were we to read section 959(b), which is broadly written, as an exception to the automatic stay, we would render superfluous the narrowly drawn governmental powers exceptions. Furthermore, we note that Congress deliberately declined to create a governmental powers exception to the stay imposed by 11 U.S.C. section 362(a)(3) against acts that exercise control over the property of the estate. These considerations weigh heavily against appellees’ statutory interpretation and, along with the plain language of the text at issue, lead us to conclude that Congress did not intend section 959(b) to serve as an independent exception to the automatic stay. We disagree with the appellees that the question here is whether Hawaii law was “preempted” by the Bankruptcy Code. The issue here is not whether but how the state may go about enforcing its laws against a violator in bankruptcy when the governmental powers exceptions do not apply. The DCCA was free" }, { "docid": "6582938", "title": "", "text": "Ohio could protect its interest in the enforcement of its environmental laws by giving clean-up judgments the status of statutory liens or secured claims. 105 S.Ct. at 712. In the case of Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986), reh’g. denied, 475 U.S. 1090, 106 S.Ct. 1482, 89 L.Ed.2d 736 (1986) (Midlantic), the Supreme Court held that a bankruptcy trustee could not abandon property under 11 U.S.C. § 544(a) in contravention of state statutes or regulations designed to protect the public health or safety from identified hazards. In Mid-lantic, the Supreme Court stated: ‘Thus, where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay.’ 106 S.Ct. at 761 (quoting H.R.Rep. No. 95-595, p. 343 (1977), 1978 U.S.Code Cong. & Ad.News 6299). The Supreme Court, however, also noted that the exception to the automatic stay contained in 11 U.S.C. § 362(b)(5) permits the government to enforce “ ‘nonmonetary’ judgments against a debtor’s estate.” 106 S.Ct. at 761. The statute at issue in this case is neither a statute dealing with compulsory insurance nor a valid financial responsibility law, both of which would not be affected by the automatic stay. Instead the New Jersey Merit Rating Plan involves a statutory system of civil penalties, the collection of which by the DMV must abide the provisions of § 362. The debtor herein requests damages in the amount of attorneys’ fees pursuant to 11 U.S.C. § 362(h). Acts violative of the automatic stay are void ab initio whether or not the violating party had notice of the filing of a bankruptcy petition. Matter of Davis, 74 B.R. 406, 410 (Bankr.N.D.Ohio 1987). Section 362(h) provides: (h) An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may" }, { "docid": "18549953", "title": "", "text": "or regulatory power.” 11 U.S.C. § 362(b)(4). Because § 362(b)(4) does not define “police or regulatory power,” the legislative history assists in determining the scope of the exception contained therein: [W]here a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damage for violation of such a law, the action or proceeding is not stayed under the automatic stay. H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6299; S.Rep. No. 989, 95th Cong., 2d Sess. 52 (1978), reprinted in 1978 U.S.Code Cong. & Admin. News, pp. 5787, 5838 (emphasis supplied). One of the purposes of this exception to the automatic stay is to protect public health and safety. See Midlantic Nat’l Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 503-04, 106 S.Ct. 755, 760-61, 88 L.Ed.2d 859 (1986). The goal of preserving a debtor’s bankruptcy estate is not always the dominant goal of bankruptcy proceedings. Penn Terra Ltd. v. Department of Environmental Resources, Commonwealth of Pennsylvania, 733 F.2d 267, 278 (3d Cir.1984). “The provisions of the Bankruptcy Code do not and are not intended to provide an automatic mechanism for relieving property owners of the unpleasant effects of valid local laws embodying police and regulatory provisions.” In re Kennise Diversified Corp., 34 B.R. 237, 245 (Bankr.S.D.N.Y.1983) (citation omitted). The § 362(b)(4) exception has been narrowly construed to apply to the enforcement of state laws affecting health, welfare, morals, and safety. Cash Currency Exchange, Inc. v. Shine (In re Cash Currency Exchange, Inc.), 762 F.2d 542, 555 (7th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985) (citing State of Missouri v. United States Bankruptcy Court for the Eastern District of Arkansas, 647 F.2d 768, 776 (8th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1035, 71 L.Ed.2d 318 (1982)). This exception applies in instances where a governmental unit sues a debtor to enforce consumer protection laws, safety regulations, or similar police or regulatory" }, { "docid": "1781704", "title": "", "text": "not relevant here. Bankruptcy does not grant debtors rights greater than those they would receive outside bankruptcy. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). It is beyond question that section 959(b) requires a trustee to manage a business in accordance with state law, as any other person must. E.g. California v. Gillis, 69 F.2d 746, 747-48 (9th Cir.), aff'd sub nom, Gillis v. California, 293 U.S. 62, 55 S.Ct. 4, 79 L.Ed. 199 (1934) (district court lacks the power to authorize a receiver to conduct the affairs of the estate contrary to state law). However, the provision does not give state agencies a license to ignore the automatic stay of the Bankruptcy Code in order to enforce state laws. Rather, the relevant case law demonstrates that section 959(b) operates as a weighty policy consideration that will in many circumstances require a bankruptcy court to grant relief from the automatic stay, if it is requested, so that a state may enforce its laws. See, e.g., Continental Air Lines v. Hillblom (In re Continental Air Lines), 61 B.R. 758 780-81 (S.D.Tex.1986) (while one or two decisions hold that section 28 U.S.C. section 959(b) is an exception to 11 U.S.C. section 362, the better view is that the statutes can be harmonized); In re Kish, 41 B.R. 620, 622-23 (Bankr.E.D.MiCh.1984) (same). In support of their position that 28 U.S.C. section 959(b) provides an automatic exception to the automatic stay, appellees rely heavily upon The Briarcliff v. The Briarcliff Tenants Ass’n (In re The Briarcliff), 15 B.R. 864 (D.N.J.1981), a case arising under the old Bankruptcy Act, which was superseded by the Code in 1978. Under the Bankruptcy Act the automatic stay was far more limited than it is under the Code. Midlantic Nat’l Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 504, 106 S.Ct. 755, 761, 88 L.Ed.2d 859 (1986). It covered only suits against the bankrupt that litigated claims dischargeable in bankruptcy and arising from pre-filing activity. The Briarcliff, 15 B.R. at 865. In The Briarcliff, the landlord/debtor in possession" }, { "docid": "8170796", "title": "", "text": "in a mixed standard of review for mixed questions of law and fact, and apply a clearly erroneous standard to “integral facts,” but exercise plenary review of the court’s interpretation and application of those facts to legal precepts. In re Exide Techs., 607 F.3d 957, 961-62 (3d Cir.2010). “This issue requires us to interpret and apply the legal precepts underlying section 362. Accordingly, the standard of review is plenary.” Mar. Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1203 (3d Cir.1991) (citation omitted). To the extent that we consider the decisions of the bankruptcy court and district court regarding comity, we review for abuse of discretion. Remington Rand Corp.-Del. v. Bus. Sys., Inc., 830 F.2d 1260, 1266 (3d Cir.1987). III. Analysis When a debtor files for bankruptcy, Section 362(a) of the Bankruptcy Code imposes a broad automatic stay. That stay prohibits “all entities” from, inter alia, “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1), (6). The automatic stay provides one of the fundamental protections for debtors found in the Bankruptcy Code. See, e.g., Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 503, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). Congress, however, has created certain statutory exceptions that prevent the operation of the automatic stay. The police power exception at issue in this case allows for “the commencement or continuation of an action or proceeding by a governmental unit or any organization exercising authority ... to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power.” 11 U.S.C. § 362(b)(4). “This exception discourages debtors from submitting bankruptcy petitions either primarily or solely for the purpose of" }, { "docid": "1781707", "title": "", "text": "the Bankruptcy Code. None of the Code cases the appellees rely upon holds that 28 U.S.C. section 959(b) is an exception to 11 U.S.C. section 862(a). Some merely stand for the uncontroversial proposition that a trustee must carry out his duties in conformity with state law. See Midlantic Nat’l Bank v. New Jersey Dept. of Envtl Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) aff'g, In re Quanta Resources Corp., 739 F.2d 912 (3rd Cir.1984) (trustee may not abandon property in violation of state environmental laws); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579 (6th Cir.1990) (state law landlord duties not preempted by Bankruptcy Code); Saravia v. 1736 18th Street, N.W., Ltd. Partnership, 844 F.2d 823, 826-27 (D.C.Cir.1988) (local housing code applies to debtor in possession). Furthermore, not one of these cases involves the automatic stay. Three of the cases that appellees contend demonstrate that section 959(b) is an exception to 11 U.S.C. section 362(a) do involve the automatic stay: Cournoyer v. Town of Lincoln, 790 F.2d 971 (1st Cir.1986); Wilner Wood Products v. Maine Dept. of Envtl. Protection, 128 B.R. 1 (D.Me.1991); Will Rogers Jockey & Polo Club, Inc. v. Oklahoma Horse Racing Comm’n (In re Will Rogers Jockey & Polo Club, Inc.), 111 B.R. 948 (Bankr.N.D.Okla.1990). However, in all three of these eases one or both of the governmental powers exceptions to the automatic stay were found to be applicable. The Coumoyer and Will Rogers courts relied upon 28 U.S.C. section 959(b) merely as support for their conclusions that there was no conflict between federal and state policy interests in allowing for state regulation under the governmental powers exceptions. See 790 F.2d at 977; 111 B.R. at 955. In Wilner Wood the district court determined that 28 U.S.C. section 959(b) prevented a bankruptcy court from enjoining under its inherent equitable powers, 11 U.S.C. section 105(a), a state regulatory action that came within the governmental powers exception to the automatic stay. 128 B.R. at 2-3. Thus, none of these eases holds that section 959(b) functions as an independent exception to the automatic stay. We decline" }, { "docid": "23270631", "title": "", "text": "the relevant equitable factors. In sum, a bankruptcy court must be guided by equitable principles in exercising its discretion to enforce or modify the automatic stay. See Matthews v. Rosene, 739 F.2d 249 (7th Cir.1984). VIII. Equitable Relief Appellants urge the applicability of 28 U.S.C. § 959, which authorizes lawsuits against debtors-in-possession with respect to any of their acts or transactions in carrying on business. In response, Appellee cites In re Fidelity Mortgage Investors, 550 F.2d at 47, for the proposition that debtors are only suable for the “routine occurrences” which arise from efforts to continue carrying on business. Id. at 56. Although the Second Circuit in In re Fidelity Mortgage Investors concluded that the “evident purpose of § 959 is to enable a debtor-in-possession to continue his business,” Id., section 959 has also been traditionally viewed as an exception to the automatic stay which is intended to permit actions redressing torts committed in furtherance of the bankrupt’s business operation. See, e.g., Haberern v. Lehigh & N.E. Ry. Co., 554 F.2d 581, 585 (3d Cir.1977); Matter of American Associated Systems, Inc., 373 F.Supp. 977 (E.D.Ky.1974). Thus, Congress has explicitly expressed its intention that a debtor is not to have carte blanche authority to ignore nonbankruptcy law. 28 U.S.C. § 959(b). Fidelity Mortgage Investors, cited by Appellee, is not inapposite, since the Second Circuit found that the suit filed by the creditors in that case was for the purpose of enhancing their position in the reorganization proceedings, rather than to redress torts occurring in the post-petition operation of the debtor’s business. Id. at 57. It has been held that 28 U.S.C. § 959 creates an express exception to the automatic stay imposed by section 362(a). See, e.g., In re Campbell, 13 B.R. 974, 976 (Bankr.D.Idaho 1981). The better view is that the statutes can be harmonized. However, the Bankruptcy Court (Texas) essentially relied upon the automatic stay, and did not attempt to harmonize the two statutes, since it adopted the debtor’s view that 28 U.S.C. § 959 was inapplicable to the N.M.I. lawsuit. Nevertheless, “the reorganization court may not properly by" }, { "docid": "13732135", "title": "", "text": "166, 61 S.Ct. 542, 546-47, 85 L.Ed. 642 (1941) (interpreting 28 U.S.C. § 124, predecessor to § 959). In Saravia, the D.C. Circuit Court of Appeals, relying on 28 U.S.C. § 959(b), held that the debtor’s estate must “ ‘manage and operate the property ... according to the valid laws of the [jurisdiction] in which such property is situated_’ 28 U.S.C. § 959(b).” 844 F.2d at 826. In the ease, the court concluded that the rejection of the tenants’ leases by the debtor did not relieve the debtor of the obligation to comply with the requirements imposed by the District of Columbia housing code for the benefit of public health and safety. The court reasoned that bankruptcy was not meant to be an automatic shield for the estate from state laws regulating health and safety. Id. at 827 (citing Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986)). Some courts have limited the application of § 959(b), particularly in the environmental liability area. These courts conclude that based on the language in the statute, that the trustee “shall manage and operate the property,” the requirement to abide by state laws is limited to property that the trustee is actually managing and operating rather than property the trustee is merely liquidating. See, e.g., Midlantic, 474 U.S. at 505, 106 S.Ct. at 761; In re N.P. Mining Co., Inc., 963 F.2d 1449, 1460 (11th Cir.1992); In re Corona Plastics, Inc., 99 B.R. 231, 235 (Bahkr.D.N.J.1989); In re Thomas Solvent Co., 44 B.R. 83, 87-88 (Bankr.W.D.Mich. 1984). This interpretation, however, has been limited to cases where the “debtor’s business operations have ceased and its assets are being liquidated.” See In re N.P. Mining, 963 F.2d at 1460. In this case, the trustee is not liquidating the property. Rather, the trustee is requesting court approval to manage and operate the property, within the meaning of § 959(b), in order to increase the sale value of the property. The trustee intends to run the building as a going concern, continuing to rent out the" }, { "docid": "18549952", "title": "", "text": "prohibits “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case.... 11 U.S.C. § 362(a)(6). The automatic stay remains in force even after the confirmation of a Chapter 13 plan until the case is closed or dismissed, or until the discharge is granted or denied. 11 U.S.C. § 362(c)(2); In re Ziegler, 136 B.R. 497, 499 (Bankr.N.D.Ill.1992); Littke v. Trustcorp Mortgage Co. (In re Littke), 105 B.R. 905, 909 (Bankr.N.D.Ind.1989). An individual debtor injured by a creditor’s willful violation of the automatic stay is entitled to recover his actual damages, including costs and attorneys’ fees, and in appropriate circumstances, punitive damages. 11 U.S.C. § 362(h); see also In re Prairie Trunk Ry., 112 B.R. 924, 929 (Bankr.N.D.Ill.1990); In re Prairie Trunk Ry., 125 B.R. 217, 219-22 (Bankr.N.D.Ill.1991), aff'd, Consolidated Rail Corp. v. Gallatin State Bank, 173 B.R. 146 (N.D.Ill.1992). Section 362(b)(4) excepts from the automatic stay “the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.” 11 U.S.C. § 362(b)(4). Because § 362(b)(4) does not define “police or regulatory power,” the legislative history assists in determining the scope of the exception contained therein: [W]here a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damage for violation of such a law, the action or proceeding is not stayed under the automatic stay. H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6299; S.Rep. No. 989, 95th Cong., 2d Sess. 52 (1978), reprinted in 1978 U.S.Code Cong. & Admin. News, pp. 5787, 5838 (emphasis supplied). One of the purposes of this exception to the automatic stay is to protect public health and safety. See Midlantic Nat’l Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 503-04, 106 S.Ct. 755, 760-61, 88 L.Ed.2d 859 (1986). The goal of preserving a debtor’s bankruptcy estate is not always the dominant goal" }, { "docid": "10235957", "title": "", "text": "federal bankruptcy policy, the state law would have to yield. See Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971). In the circumstances of this case, however, the only preemption question we need resolve is whether the obligations imposed by the District of Columbia’s housing code impermissibly trench on the policies sought to be fostered by rejection of executory contracts pursuant to section 365(h). See id. In our view, the public obligations imposed by District of Columbia law are simply not implicated by the right of rejection. Rejection of the leases- did no more than release the debtor from the contractual obligations undertaken in those leases. The debtor does not cease to be a landlord simply by virtue of rejection of the leases, and there is no reason to exempt the partnership from obligations imposed by local law on all landlords. This is especially so where, as here, the local laws in question are designed to protect public health and safety. Where laws of this sort are challenged under the Supremacy Clause, courts are not to condemn them to the oblivion of preemption doctrine “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Congress has evinced no such intent in enacting section 365(h); indeed, section 959(b) looks in exactly the opposite direction. Nor will the general bankruptcy policy of fostering the rehabilitation of debtors serve to preempt otherwise applicable state laws dealing with public safety and welfare. This, we believe, is the import of 28 U.S.C. § 959(b). Further buttressing this view is 11 U.S.C. § 362(b)(4) (1982), which provides a “police power” exception to the automatic stay otherwise imposed in all actions against debtors. Indeed, dictum from the Supreme Court in Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986), virtually compels this conclusion. There, the Court stated: Title 28 U.S.C. 959(b) provides ... evidence that Congress did not intend for the Bankruptcy" }, { "docid": "1781683", "title": "", "text": "It is designed to effect an immediate freeze of the status quo by precluding and nullifying post-petition actions, judicial or nonjudieial, in nonbankruptcy fora against the debtor or affecting the property of the estate. Interstate Commerce Comm’n v. Holmes Transp., Inc., 931 F.2d 984, 987 (1st Cir.1991), vacated 983 F.2d 1122 (1st Cir.1993). The automatic stay plays a vital and fundamental role in bankruptcy. Midlantic Nat’l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986); Schwartz v. United States (In re Schwartz), 954 F.2d 569, 571 (9th Cir.1992). The stay ensures that all claims against the debtor will be brought in a single forum, the bankruptcy court. Pettibone Corp. v. Easley, 935 F.2d 120, 123 (7th Cir.1991). The stay protects the debtor by allowing it breathing space and also protects creditors as a class from the possibility that one creditor will obtain payment on its claims to the detriment of all others. Treasurer of Snohomish Cty., Wash. v. Seattle First Nat’l Bank (In re Glasply Marine Indus.), 971 F.2d 391, 394-95 (9th Cir.1992); Stringer, 847 F.2d at 551. In this circuit, actions taken in violation of the automatic stay are void rather than voidable. Schwartz, 954 F.2d at 571; Stringer, 847 F.2d at 551. While the automatic stay specifically enjoins eight acts, only one subsection of that provision is at issue here: 11 U.S.C. § 362(a)(3). It provides: (a) Except as provided in subsection (b) of this section, a [filed] petition ... operates as a stay, applicable to all entities, of— (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (emphasis added) A principal purpose of this provision is to preserve property for use in the reorganization of the debtor and to prevent the dismemberment of the estate. Continental Air Lines, Inc. v. Hillblom (In re Continental Air Lines, Inc.), 61 B.R. 758, 779 n. 41 (S.D.Tex.1986) (quoting legislative history); The Official Committee of Unsecured Creditors v. PSS Steamship Co. (In re Prudential Lines)," }, { "docid": "10724385", "title": "", "text": "any \"police powers” over the County with respect to AHCRA. See Bd. of Supervisors v. Royal (In re Royal), 137 Fed.Appx. 537, 540 (4th Cir.2005). However, this Court need not address this issue given its holding with respect to § 362(b)(4). . Even if AHCRA be viewed as being a regulatory law, § 362(b)(4) is of no assistance to the City Parties because what they seek is merely enforcement of contractual rights. See In re Corporacion de Servicios Medicos Hospitalarios de Fajardo, 805 F.2d 440, 445 (1st Cir.1986). . Part of why Barton's evolution is considered when addressing 28 U.S.C. § 959 is how Barton's application in a matter involving a bankruptcy court's trustee or debtor in possession or other court officer interrelates with § 959's usage. Of particular relevance is how the Automatic Stays of the Bankruptcy Code operate along with the § 959(a) exception to the Barton Doctrine. Some courts have used the statutory interpretation rule that a more specific enactment, § 959(a), further defines the more general one, 11 U.S.C. § 362(a). See, e.g., Minn. Pollution Control Agency Inc. v. Gouvea (In re Globe Bldg. Materials, Inc.), 345 B.R. 619, 636 (Bankr.N.D.Ind.2006); 10 Collier on Bankruptcy 1f 10.04[1] (16th ed. 2009). Others have attempted to harmonize the two. See, e.g., In re Continental Air Lines, Inc., 61 B.R. 758 (S.D.Tex.1986); 10 Collier on Bankruptcy ¶ 10.04[1] (16th ed. 2009). Both views allow § 959 to supersede the Automatic Stays in certain instances. Given 28 U.S.C. § 959’s origins dating back to 1887 along with alteration of federal bankruptcy jurisdiction, it is arguable that neither approach is warranted and that § 959 should have no application in a federal jurisdictional setting under the Bankruptcy Code. See infra n. 25. . Section 1334(e) provides the court with exclusive jurisdiction over \"all the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate.” . This taking is not stripping possession of the res from its owner. Rather, it must be effective transfer of legal and equitable interest in the property in" }, { "docid": "11984129", "title": "", "text": "on Monday, September 17, 2007, until SCO filed for bankruptcy on Friday, September 14, 2007. Novell filed the instant Motion on October 4, 2007 contending that relief from the automatic stay is warranted for cause. The Motion was set for hearing on November 6, 2007. II. JURISDICTION This is a core proceeding which invests the Court with jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(G). III. ANALYSIS A. The Law The automatic stay is one of the most fundamental protections provided to the debtor under the Bankruptcy Code. Midlantic Nat’l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 503, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) reh’g denied 475 U.S. 1090, 106 S.Ct. 1482, 89 L.Ed.2d 736. The purpose of the automatic stay is “to prevent certain creditors from gaining a preference for their claims against the debtor; to forestall the depletion of the debtor’s assets due to legal costs in defending proceedings against it; and, in general, to avoid interference with the orderly liquidation or rehabilitation of the debtor.” St. Croix Condominium Owners v. St. Croix Hotel, 682 F.2d 446, 448 (3d Cir.1982). However, the automatic stay is not meant to be absolute, and in appropriate instances relief may be granted. Wedgewood Inv. Fund, Ltd. v. Wedgewood Realty Group, Ltd. (In re Wedgewood), 878 F.2d 693, 697 (3d Cir.1989). Section 362(d)(1) of the Bankruptcy Code provides that: 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.... Except for lack of adequate protection, “cause” is not defined by § 362(d)(1). Cause is a flexible concept and courts often conduct a fact intensive, case-by-case balancing test, examining the totality of the circumstances to determine whether sufficient cause exists to lift the stay. See Baldino v. Wilson (In re Wilson), 116 F.3d 87, 90 (3d Cir.1997); In re Laguna Assocs. Ltd., 30" }, { "docid": "1781705", "title": "", "text": "Lines v. Hillblom (In re Continental Air Lines), 61 B.R. 758 780-81 (S.D.Tex.1986) (while one or two decisions hold that section 28 U.S.C. section 959(b) is an exception to 11 U.S.C. section 362, the better view is that the statutes can be harmonized); In re Kish, 41 B.R. 620, 622-23 (Bankr.E.D.MiCh.1984) (same). In support of their position that 28 U.S.C. section 959(b) provides an automatic exception to the automatic stay, appellees rely heavily upon The Briarcliff v. The Briarcliff Tenants Ass’n (In re The Briarcliff), 15 B.R. 864 (D.N.J.1981), a case arising under the old Bankruptcy Act, which was superseded by the Code in 1978. Under the Bankruptcy Act the automatic stay was far more limited than it is under the Code. Midlantic Nat’l Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 504, 106 S.Ct. 755, 761, 88 L.Ed.2d 859 (1986). It covered only suits against the bankrupt that litigated claims dischargeable in bankruptcy and arising from pre-filing activity. The Briarcliff, 15 B.R. at 865. In The Briarcliff, the landlord/debtor in possession sought from the bankruptcy court a stay against the proceedings of the local rent control board pertaining to an allegedly illegal rent increase. Id. The bankruptcy court denied the motion and the district court affirmed. The district court in The Briarcliff expressly relied on the limits of the stay under the Act, holding that the stay was inapplicable because “[t]he action of the Cliffside Park Rent Leveling Board is not a proceeding which will litigate a claim dischargeable in bankruptcy.” Id. at 866. As an alternate ground for affirmance, The Briarcliff district court concluded that 28 U.S.C. section 959(b), as interpreted in Gillis and its progeny, prevented a bankruptcy court from interfering with the functioning of the rent control board. 15 B.R. at 868. Because the debtor in possession/landlord had asked for relief beyond the power of the court, the motion could not be granted. Id. While The Briarcliff represents a correct application of 28 U.S.C. section 959(b), it sheds no light on the relationship between that provision and the broad automatic stay provisions of" }, { "docid": "1781703", "title": "", "text": "3. Twenty-Eight U.S.C. Section 959(b) Does Not Operate as an Independent Exception to the Automatic Stay. Appellees strenuously contend that 28 U.S.C. § 959(b) justifies the DCCA’s dissolution of Hillis and that this provision operates as an independent exception to the automatic stay, although it is not a part of the Bankruptcy Code. They also argue that subsection (b) demonstrates that Hawaii law was not preempted by the Bankruptcy Code. Section 959(b) provides: [A] trustee, receiver or manager appointed in any cause pending in any court of the United States, including a debtor in possession, shall manage and operate the property in his possession as such trustee, receiver or manager according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. We conclude that appellees’ contention is incorrect and that section 959(b) does not function as an exception to the automatic stay. Moreover, we find that a preemption analysis is not relevant here. Bankruptcy does not grant debtors rights greater than those they would receive outside bankruptcy. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). It is beyond question that section 959(b) requires a trustee to manage a business in accordance with state law, as any other person must. E.g. California v. Gillis, 69 F.2d 746, 747-48 (9th Cir.), aff'd sub nom, Gillis v. California, 293 U.S. 62, 55 S.Ct. 4, 79 L.Ed. 199 (1934) (district court lacks the power to authorize a receiver to conduct the affairs of the estate contrary to state law). However, the provision does not give state agencies a license to ignore the automatic stay of the Bankruptcy Code in order to enforce state laws. Rather, the relevant case law demonstrates that section 959(b) operates as a weighty policy consideration that will in many circumstances require a bankruptcy court to grant relief from the automatic stay, if it is requested, so that a state may enforce its laws. See, e.g., Continental Air" }, { "docid": "1087333", "title": "", "text": "and interests in property — and with the underlying fundamental protection which the automatic stay provides the debtor — a breathing spell in which he can attempt to reorganize or orderly liquidate his affairs. Only after relief from stay is granted under Section 362(d) will the six month period run. The County argues that under 28 U.S.C. Section 959(b), the Trustee and the debtor-in-possession who preceded him are required to: “Manage and operate the property in his possession ... according to the requirements of the valid laws of the state in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof.” 28 U.S.C. Section 959(b). In support of its position, the County cites Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) for the proposition that “the filing of a bankruptcy petition does not create a zone around the property of the estate which is immune from state regulation.” Defendant’s Memorandum in support of its Motion for Partial Summary Judgment at p. 3. An analysis of Midlantic reveals that the court only drew an analogy between its holding and Section 959 but did not base its decision on it: “Even though § 959(b) does not directly apply to an abandonment under § 554(a) of the Bankruptcy Code ... the section [§ 959(b) ] nevertheless supports our conclusion that Congress did intend for the Bankruptcy Code to pre-empt all state laws that otherwise constrain the exercise of a trustee’s powers.” Id. 106 S.Ct. at 762. (Emphasis added). The Court did not analyze or apply Section 959(b) further, except to the extent that it stated that “the petitioners have contended that § 959(b) is relevant only when the trustee is actually operating the business of the debtor, and not when he is liquidating it”. Id. at 761. The Court neither endorsed nor rejected the petitioner’s contention. But see: In re Security Gas & Oil, Inc., 70 B.R. 786, 796 (Bankr.N.D.Cal.1987) (Citing Midlantic in support of the proposition" } ]

[ { "docid": "22657148", "title": "", "text": "as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult- and sensitive balancing process. But, because we are dealing with a fundamental right pf the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution. V The difficulty of the task of balancing these factors is illustrated by this case, which we consider to be close. It is clear that the length of delay between arrest and trial — well over five years — was extraordinary. Only seven months of that period can be attributed to a strong excuse, the illness of the ex-sheriff who was in charge of the investigation. Perhaps some delay would have been permissible under ordinary circumstances, so that Manning could be utilized as a witness in Barker’s trial, but more than four years was too long a period, particularly since a good part of that period was attributable to the Commonwealth’s failure or inability to try Manning under circumstances that comported with due process. Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker was prejudiced to some extent by living fop,, over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker’s witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory — one on the part of a prosecution witness — which were in no way significant to the outcome. More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial. Counsel was appointed for Barker immediately after his indictment and represented him throughout the period. No question is raised as to the competency of such counsel. Despite the fact that counsel had notice of the motions for continuances, the record shows no action whatever" } ]

[ { "docid": "4921017", "title": "", "text": "773, 15 L.Ed.2d 627 (1966); U. S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); U. S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Within the confines of the Sixth Amendment requirements, and therefore affording a broader mantle of protection to the individual suspect, are the provisions of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and of Rule 48(b). The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . be deprived of life, liberty, or property without due process of law,” while the Sixth Amendment’s first words are: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . ” The different operation of these two clauses, insofar as relevant to the instant inquiry, was clearly expounded in the line of cases cited above. In Marion and Lovasco the Supreme Court declared that in order to ground a delay-of-prosecution claim on the Due Process Clause of the Fifth Amendment an essential predicate is a showing that the delay has worked an actual and substantial detriment to the fairness of the trial as a device for the determination of truth; in other words, the interest toward which the Due Process Clause is directed in this regard is the defendant’s interest in the fairness of the trial itself, and the defendant who seeks to avail himself of its protection must show actual prejudice to that interest. 404 U.S. at 324-26, 92 S.Ct. 455. The Sixth Amendment Speedy Trial Clause on the other hand, calls into play a wider range of interests. In passing upon a speedy-trial claim, courts are directed to assess the interplay in the particular case of four factors: (1) the length of the delay, (2) the reason(s) for the delay, (3) the assertion by the defendant of the right to a speedy trial, or his failure to assert it, and (4) the prejudice which the defendant has suffered by reason of" }, { "docid": "15475250", "title": "", "text": "the ability of an accused to defend himself.” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), quoting United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). In determining whether the appellants’ sixth amendment rights were violated, we are governed by the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We have said that pursuant to the Barker test the conduct of the prosecution and the defendant is balanced, on an ad hoc basis, giving particular attention to four factors: (i) length of delay, (ii) the reason for the delay, (iii) the defendant’s assertion of his right, and (iv) prejudice to the defendant. United States v. Davis, supra, 487 F.2d at 117. “The test is more suggestive than exhaustive, and this Court has found implicit in Barker other factors to be thrown into the balance” including the complexity of the case and the availability of evidence. United States v. Avalos, supra, 541 F.2d at 1110. Length of delay. The length of the delay involved must be sufficient to be “presumptively prejudicial,” otherwise “there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192. The length of delay is usually computed from the time that financial, social and psychological prejudice may begin to accrue to an accused. United States v. Marion, supra, 404 U.S. at 320, 92 S.Ct. at 463; see Dillingham v. United States, supra, 423 U.S. at 64-66, 96 S.Ct. at 303-04. The present appellants date their alleged prejudice from the return of the first indictment on April 14, 1974. For present purposes we shall adopt the same date. Trial commenced on January 26, 1976. All parties waived any speedy trial objection, however, for the period between December 1, 1975 and January 26, 1976. The length of the delay to be considered is thus April 14, 1974 until December 1, 1975 or 19 months and 2 weeks. Accordingly, there is sufficient" }, { "docid": "9882325", "title": "", "text": "sponte, is a matter addressed to the sound discretion of the trial court. United States v. Barney, 550 F.2d 1251, 1254 (10th Cir.1977). Appellant’s complaint focuses on the period between November 1989, and May 1990. Kalady asserts he “was arrested on 8 November, 1989 on the warrant from Wyoming,” and argues that the Government intentionally delayed his return to Wyoming in order to avoid “Speedy Trial problems.” This argument fails because the record establishes that Kalady was arrested in November 1989 on the parole violation warrant from Illinois. Ka-lady was not arrested on authority of the Wyoming warrant for failure to appear until May 3, 1990. Therefore, Appellant’s complaint involves post-indictment, pre-ar-rest delays. However, “Fed.R.Crim.P. 48(b), treating unnecessary delay in presenting the charge to a grand jury or in bringing a defendant to trial, applies only to post-arrest delay.” United States v. Revada, 574 F.2d 1047, 1048 (10th Cir.1978) (emphasis added). See United States v. Lovasco, 431 U.S. 783, 789 n. 8, 97 S.Ct. 2044, 2048 n. 8, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971). Thus, Appellant can claim no relief under Rule 48(b). We next consider Appellant’s constitutional claims. First, Kalady claims he was deprived of his speedy trial right under the Sixth Amendment. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial_” U.S. Const. amend. VI. As Appellant correctly notes, we apply the four factors of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in determining whether the constitutional guarantee of a speedy trial has been violated. “A Sixth Amendment speedy trial claim is assessed by balancing the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial, and whether the delay prejudiced the defendant.” United States v. Tranakos, 911 F.2d 1422, 1427 (10th Cir.1990) (citing Barker, 407 U.S. at 530, 92 S.Ct. at 2192). None of these factors, taken by itself, is “either a necessary or sufficient condition to the finding of a" }, { "docid": "6551599", "title": "", "text": "balancing test in which the length of delay, the reason for the delay, the accused’s assertion of his right, and the prejudice to the accused resulting from the delay, along with other relevant circumstances, were to be taken into consideration in analyzing speedy trial claims. No single factor was to be regarded “as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial .... [T]hese factors have no talismanic qualities; courts must . . . engage in a difficult and sensitive balancing process. [Footnote omitted.]” Id. at 533, 92 S.Ct. at 2193. In applying this standard in the instant case, the first question which must necessarily be faced' is the extent of the delay. As appellant points out, fifteen months elapsed between his arrest and the return of the indictment and an additional eight months passed between indictment and trial. The government contends, however, that the fifteen month period should not be counted since the arrest for possession of the shotgun was a mere “temporary device” used to restrain appellant until the Corvette’s engine number could be checked and he could be arrested for possession of stolen property. This argument is not persuasive. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Court held: “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” Id. at 320, 92 S.Ct. at 463. In the instant case the testimony of Sergeant Graves unequivocally demonstrates that he arrested appellant for possession of the illegal firearm. The government’s prosecution of this charge was initiated only three days later when, on October 7, 1970, state authorities turned over this weapon to a federal officer. Under these circumstances, regardless of the almost simultaneous arrest for possession of stolen goods, it is clear that appellant’s right to a speedy trial crystallized at the time of his initial arrest. On the other hand, appellant’s attempt to" }, { "docid": "8547459", "title": "", "text": "the first three factors in the Barker test weigh heavily against the Government. The post-indictment delay in this case was two years, twice the threshold for presuming prejudice. “In cases of government negligence, our concern for substantiating prejudice decreases as the period of delay increases.” Id. at 1353. The Supreme Court has instructed, “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S. at 652, 112 S.Ct. at 2691. We have not considered the pre-indictment delay (two and one-half years) in our decision that the length of the post-indictment delay (two years) is sufficient for us to proceed to consider the other Barker factors. Only pretrial delay following a person’s arrest, charge, or indictment is relevant to whether the Speedy Trial Clause of the Sixth Amendment is triggered. See United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (holding pre-indictment delay is “wholly irrelevant” to whether the Sixth Amendment speedy trial analysis is engaged) (quoting United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971)). But once the Sixth Amendment’s speedy trial analysis is triggered, it is appropriate to consider inordinate pre-indictment delay in determining how heavily post-indictment delay weighs against the Government. See United States v. Watson, 599 F.2d 1149, 1157 (2d Cir.1979) (stating “ ‘preindictment’ delay may have some relevance to the analysis of the speedy trial right,” but concluding the post-indictment period not long enough to “raise a Sixth Amendment issue”); United States v. Vispi, 545 F.2d 328, 333 (2d Cir.1976) (stating that the delay between the government’s discovery of the offense and its filing of the information was relevant in assessing whether the post-information delay was intolerably long for purposes of the Sixth Amendment right to a speedy trial). The rationale for presuming prejudice is, after all, that “excessive delay presumptively compromises the reliability of a trial in ways that, neither party can prove or, for that matter, identify.” Doggett, 505 U.S. at 655, 112 S.Ct. at 2693. Thus, the two-year post-indictment delay in this case weighs more" }, { "docid": "14482063", "title": "", "text": "v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). A person becomes an accused when the prosecution is initiated against him either through “a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.” Id. at 320, 92 S.Ct. at 463. The Supreme Court has explicitly stated that a person is considered an accused when he is arrested, regardless of when an indictment is finally handed down. Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975). The Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), set forth the nature of the test in determining whether a defendant’s Sixth Amendment right has been violated: A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192 (footnote omitted). Where the delay occurs at the prearrest or pre-indictment stage, however, the delay is evaluated under the due process clause and the defendant bears a heavier burden to establish a constitutional violation. “Pre-indictment delay is permissible unless it violates ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’.” United States v. Walker, 601 F.2d 1051, 1056 (9th Cir. 1979) (quoting Arnold v. McCarthy, 566 F.2d 1377, 1381 (9th Cir. 1978)). Under the due process inquiry the court must consider the reasons for the delay as well as the prejudice to the accused. Proof of prejudice is a necessary, but generally not a sufficient, element of the claim. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Henry was arrested on December" }, { "docid": "14989463", "title": "", "text": "in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also Doggett, 505 U.S. at 666, 112 S.Ct. 2686 (Thomas, dissenting) (“[T]he Due Process Clause always protects defendants against fundamentally unfair treatment by the government in criminal proceedings.”). A delay in criminal proceedings that “violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency,” can, depending on the circumstances, constitute a violation of the Due Process Clause. Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (internal quotation marks and citations omitted). In the same vein, another panel of our Court has recognized that “[a]n indictment brought within the time constraints of the statute [of limitations] may nevertheless violate due process where pre-indictment delay has been shown to cause ‘substantial prejudice’ to the defendant’s ability to present his defense and ‘the delay was an intentional device to gain [a] tactical advantage over the accused.’ ” United States v. Cornielle, 171 F.3d 748, 752 (2d Cir.1999) (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). The Federal Rules of Criminal Procedure also protect criminal defendants from unreasonable delays in sentencing. Pursuant to Rule 32(b)(1), “[t]he court must impose sentence without unnecessary delay.” The directive set forth in Rule 32, taken together with the general prohibition of “oppressive delay” established by the Due Process Clause, Lovasco, 431 U.S. at 789, 97 S.Ct. 2044, protects criminal defendants from unreasonable delays between conviction and sentencing. In order to determine whether a defendant has been deprived of her due process right to a prompt sentencing, we “must consider [1] the reasons for the delay as well as [2] the prejudice to the accused.” Id. at 790, 97 S.Ct. 2044; see also Sanders, 452 F.3d at 580 (“Though the Lovasco line of cases addresses pretrial delays, we find it equally applicable to [delays in resentencing]. As in the time period before the Sixth Amendment right to a speedy trial attaches, the" }, { "docid": "8547458", "title": "", "text": "his right to a speedy trial, weighs against the Government. There is no error in this finding. Indeed, the Government concedes that “Ingram properly asserted his right to a speedy trial.” Because we find that all three of these Barker factors weigh against the Government, we proceed to determine whether they do so heavily. If they do not, then Ingram must demonstrate factor (4), actual prejudice, to succeed in his appeal. As stated above, the district court did not perform this part of the Barker analysis. In Clark, we found that a seventeen-month delay due to Government negligence was insufficient to excuse that defendant, indicted on six counts of controlled substance violations and one count of carrying firearms during a drug trafficking crime, from the requirement that he demonstrate actual prejudice. However, Clark itself is clear that, “there is no hard and fast rule to apply here, and each case must be decided on its own facts.” Clark, 83 F.3d at 1354. When we consider the facts of this case, we conclude that each of the first three factors in the Barker test weigh heavily against the Government. The post-indictment delay in this case was two years, twice the threshold for presuming prejudice. “In cases of government negligence, our concern for substantiating prejudice decreases as the period of delay increases.” Id. at 1353. The Supreme Court has instructed, “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S. at 652, 112 S.Ct. at 2691. We have not considered the pre-indictment delay (two and one-half years) in our decision that the length of the post-indictment delay (two years) is sufficient for us to proceed to consider the other Barker factors. Only pretrial delay following a person’s arrest, charge, or indictment is relevant to whether the Speedy Trial Clause of the Sixth Amendment is triggered. See United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (holding pre-indictment delay is “wholly irrelevant” to whether the Sixth Amendment speedy trial analysis is engaged) (quoting United States v. Marion, 404 U.S. 307, 320," }, { "docid": "941245", "title": "", "text": "1971. In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L. Ed.2d 468, the Supreme Court said that the Sixth Amendment speedy trial provision “has no application until the putative defendant in some way becomes an ‘accused.’ ” Defendant in the case at bar became an accused when the April 11, 1969, complaint was filed. We are not impressed with the argument that in an income tax case the accusatorial stage begins when the investigation is focused on the accused by referral of the case to the Intelligence Division. In Marion, business records were delivered to the United States Attorney’s office and defendant was interviewed in the summer of 1968. 404 U.S. at 309, 92 S. Ct. 455. The indictment was returned in April, 1970. Ibid. On these facts the Court held that the speedy trial provision was not engaged until indictment. Accordingly, we are concerned with what occurred after the filing of the complaint. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Court considered the speedy trial provision in its application to a murder conviction in a trial held more than five years after the arrest of the accused and found no constitutional deprivation. In so doing, the Court approved a balancing test in which the conduct of both prosecution and accused is weighed on an ad hoe basis. Although not excluding other factors, the Court identified four as pertinent. They are: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at-, 92 S.Ct. at 2192. The pertinent Sixth Amendment delay was between the filing of the complaint on April 11, 1969, and the start of the trial on March 22, 1971. The December 4, 1969, indictment was dismissed on June 9, 1970, on motion of the United States Attorney because of violation of grand jury secrecy. Defense counsel was present at the presentation of the motion to dismiss. Among other things he said that it would be unfair to continue the personal recognizance bond if" }, { "docid": "4088742", "title": "", "text": "L.Ed.2d 1 (1967). The speedy trial clause was designed to prevent undue pretrial incarceration, minimize anxiety accompanying public accusation, and limit the possibility that long delay will impair the accused’s ability to defend himself. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). See also Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. In 1972, the United States Supreme Court enunciated specific criteria by which to judge claims of deprivation of the right to a speedy trial. In the now landmark decision, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court adopted a case-by-case balancing test. Four elements — the length of the delay, the defendant’s assertion of his right, the reasons for the delay, and the prejudice to the defendant caused by the delay — were identified by the Court as factors that should be assessed in each particular case. Id. at 530, 92 S.Ct. at 2192. 1. The Length of the Delay The United States Supreme Court has ruled that the sixth amendment right to a speedy trial attaches at that point at which a person is arrested and held to answer on a criminal charge. United States v. Marion, 404 U.S. 307, 320-321, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). See also Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975). Thus, in the present case, petitioner’s right to a speedy trial attached on April 5, 1975 when he was arrested by the Norwalk, Connecticut police. From this date a period of eighteen months and twenty-eight days elapsed before petitioner was first brought to trial by the State on November 3, 1976. After the first trial ended in a mistrial on November 16, 1976, petitioner was not again brought to trial until January 11, 1977 or twenty-one months and six days after his constitutional right to a speedy trial was activated. The Court in Barker v. Wingo noted that if the length of the delay in awaiting trial is presumptively prejudicial, it triggers" }, { "docid": "7491532", "title": "", "text": "92 S.Ct. at 2185. In Barker, the Court adopted an ad hoc four part balancing test “in which the conduct of both the prosecution and the defendant are weighed.” Id. at 530, 92 S.Ct. at 2192. The four factors that must be assessed are: the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. The Supreme Court regarded none of these factors as decisive. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. Id. at 533, 92 S.Ct. at 2193. See Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973). 1. Length of Delay The length of the delay in the Salzmann case is substantial even though the Sixth Amendment only applies to post-accusation delay. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) (Per Curiam); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Discussion of the more than two years that passed between the alleged crime and indictment and of the nearly seventeen months that passed between the prosecutor’s receipt of the delinquent registrant report and the indictment will be reserved for the analysis of Rule 48(b) of the Federal Rules of Criminal Procedure, infra. Salzmann was indicted in June of 1972. Four years later he has still not been brought to trial. The length of this delay places a heavy burden of justification on the government. See, e. g., United States v. Jones, 524 F.2d 834, 849 (D.C. Cir. 1975); United States v. Geelan, 520 F.2d 585, 587 (9th Cir. 1975); United States v. West, 164 U.S.App.D.C. 184, 504 F.2d 253, 255-56 (1974). 2. Reasons for Delay Salzmann and the government share responsibility for this delay. There is no indication in the record that Salzmann has made any serious effort to return" }, { "docid": "8596192", "title": "", "text": "the lengthy interval between his arrest and trial was an undue delay that deprived him of his constitutional right to a speedy trial. In assessing this contention we are guided by the decision of the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 701 (1972), which declared that speedy trial claims require courts to employ a sensitive balancing process in which “the conduct of both the prosecution and the defendant are weighed.” 407 U.S. at 530. The Court identified some of the factors that should be considered in this necessarily ad hoc determination: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530 (footnote omitted). With these criteria in mind, we first identify the period of delay that is properly challenged in this case. Appellant contests the government’s failure to bring him to trial for a period of thirty-one and one-half months after the date of the offense. Because United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), established that the speedy trial right does not inhere until there is “either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge,” 404 U.S. at 320, we do not consider any delay occurring before appellant’s arrest on October 4, 1968. Accordingly, we focus attention on the period of approximately thirty-one months from the date of arrest to the time of trial, April 28, 1971. A delay of this magnitude must be examined critically by anyone concerned with the rights of criminal defendants and the broader interest of society in the fair but prompt administration of justice. However, this observation does not lead ineluctably to the conclusion that appellant was deprived of his right to a speedy trial. Instead, this delay draws our attention to the attendant costs to society and to possible prejudice to appellant and thereby mandates our inquiry into all factors relevant to a determination whether the constitutional right to a speedy trial" }, { "docid": "15119120", "title": "", "text": "Court cases of United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), define the criteria to be applied in determining whether lengthy pre-indictment delay deprives a defendant of due process of law. In Marion, in holding that no Sixth Amendment denial of speedy trial is occasioned by pre-indictment delay, the Court noted that the primary guarantee against bringing overly stale criminal charges is provided by the legislative limits provided by statutes of limitations, 404 U.S. at 322, 92 S.Ct. at 464, but that the Due Process Clause of the Fifth Amendment also has a limited role to play in protecting against oppressive delay that prejudices an accused’s right to a fair trial, 404 U.S. at 324-26, 92 S.Ct. at 465-66. The Court accepted the government’s concession that due process will require dismissal of an indictment where it is “shown that the pre-indictment delay caused substantial prejudice to [an accused’s] right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” 404 U.S. at 324, 92 S.Ct. at 465. In Lovasco, the Court elaborated on the test. There, the accused was somewhat prejudiced for trial by an eighteen-month delay in indictment subsequent to the conduct charged. In reversing a dismissal on that account, the Court stated that “proof of prejudice is generally a necessary but not sufficient element of a due process claim,” and that “the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 790, 97 S.Ct. at 2048^49. The Court then balanced the prejudice to the accused against the prosecution’s reason for the delay — a good-faith continuing investigation — and found that due process was not offended by the delay: i. e., the delay did not violate “ ‘fundamental conceptions of justice’ ”, 431 U.S. at 791, 97 S.Ct. at 2049, or “elementary standards of ‘fair play and decency’ ”, 431 U.S. at 795, 97 S.Ct. at" }, { "docid": "7491531", "title": "", "text": "the Sixth Amendment claim. 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. In construing this clause, the Supreme Court has emphasized its importance. Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Not until the decision in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), however, did the Court articulate “the criteria by which the speedy trial right is to be judged.” Id. at 516, 92 S.Ct. at 2185. In Barker, the Court adopted an ad hoc four part balancing test “in which the conduct of both the prosecution and the defendant are weighed.” Id. at 530, 92 S.Ct. at 2192. The four factors that must be assessed are: the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. The Supreme Court regarded none of these factors as decisive. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. Id. at 533, 92 S.Ct. at 2193. See Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973). 1. Length of Delay The length of the delay in the Salzmann case is substantial even though the Sixth Amendment only applies to post-accusation delay. Dillingham v. United States, 423 U.S. 64," }, { "docid": "9589216", "title": "", "text": "16 months between his indictment and his arrest violated his Sixth Amendment right to a speedy trial. As discussed above, pre-indictment delay is not measured by Sixth Amendment standards; however, the returning of an indictment against a defendant serves to make him an “accused” and brings Sixth Amendment guarantees into play. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Furthermore, if defendant has indeed been denied his right to a speedy trial, dismissal of the charges is mandated. No other remedy is allowable. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); United States v. Ramirez, 524 F.2d 283, 285 (10th Cir.1975). The Supreme Court has adopted a four-part test for judging the merits of claims of denial of a speedy trial. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972), the Court adopted a balancing test that requires courts to approach speedy trial issues on an ad hoc basis, identifying four factors to consider in determining whether a particular defendant has been deprived of his right: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. No one factor alone is necessary or sufficient to establish a violation of the speedy trial guarantee; “[rjather, they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533, 92 S.Ct. at 2193; see United States v. Graham, 538 F.2d 261, 263 (9th Cir.1976), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 294 (1976). The first factor, the length of the delay, is to some extent a triggering device. Unless there is some delay which is presumptively prejudicial, no inquiry into the other factors is necessary. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972). See United States v. Latimer, 511 F.2d 498, 501 (10th Cir.1975); Smith v. Mabry, 564 F.2d 249, 251-52 (8th Cir.1977), cert. denied, 435 U.S. 907,98 S.Ct." }, { "docid": "12049352", "title": "", "text": "to a specific question from the military judge the convening authority denied emphatically “that a portion of . . . [his] motivation in the timing of the referral of this case was to select the forum of the judge before which it came.” The military judge also denied this motion to dismiss. While rejecting a defense request that he make special findings, he stated, “I believe that Article 30(b) does apply; and I believe given the facts and circumstances that the convening authority acted as soon as he could; that he did act immediately given the facts and circumstances which he has related were known to him and the concerns that he had.” II Whether tried by civilian court or by court-martial, an accused has a constitutional right to a speedy trial. U.S.Const. amend. VI. However, this right only applies after an indictment is filed or charges are preferred. See United States v. MacDonald, - U.S. -, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The right to a speedy trial does not “require the Government to discover, investigate, and accuse any person within any particular period of time.” United States v. Marion, supra at 313, 92 S.Ct. at 459. See Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972). Indeed, “[t]o recognize a general speedy trial right commencing as of the time arrest or charging was possible would have unfortunate consequences for the operation of the criminal justice system.” United States v. Marion, supra 404 U.S. at 321 n.13, 92 S.Ct. at 463 n.13. Under some circumstances extensive delay in preferring charges might justify a due-process claim by an accused; but clearly such situations are very unusual. Indeed, as the Supreme Court made clear in United States v. Lovasco, supra, haste in initiating prosecutions may sometimes offend due process, for: It requires no extended argument to establish that prosecutors do not deviate from “fundamental conceptions of" }, { "docid": "6828130", "title": "", "text": "rigidly applied Martin Linen rule merely by requesting a dismissal prior to the presentation of evidence in a bench trial, or before a jury is empaneled and sworn. We do not find this argument persuasive in this case, where there is simply no evidence of any intentional delay or prosecutorial manipulations. Sufficient constitutional and statutory measures protect defendants in cases that might be tainted by an overzealous prosecutor abusing the rules marking the attachment of jeopardy to make abandonment of those rules unnecessary here. . The protections of the Sixth Amendment’s Speedy Trial Clauses are activated by a “formal indictment or information or else actual restraints imposed by arrest and holding to answer a criminal charge.” . . . United States v. Marion, 1971, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 479; Dillingham v. United States, 1975, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205. The accusal necessary for triggering the Speedy Trial Clause occurred no later than the return of the first indictment on August 21, 1973. The time period covered by Barker thus begins at this date. . Of course, some prejudice arises from the “cloud of anxiety, suspicion, and often hostility” associated with any impending criminal prosecution and from any pretrial incarceration. See Barker v. Wingo, supra at 534, 92 S.Ct. at 2193; 33 L.Ed.2d at 119. We find these factors to be minimal in this case. They certainly do not shift the balance of speedy trial considerations in Pitts’s favor. . Pitts’s counsel tangentially argues that the preindictment delay was impermissible under the Due Process Clause of the Fifth Amendment, citing the Supreme Court’s decision in United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. This case, as emphasized by the subsequent decision in United States v. Lovasco, 1977, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752, 759, “makes clear that proof of prejudice [from preaccusation delay] is a . . . necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for" }, { "docid": "4921016", "title": "", "text": "a broad framework in which constitutional and statutory provisions interrelate. In the most generalized fashion, a suspect’s speedy-trial rights are protected by the applicable statute of limitations. For reasons of legislatively determined policy, prosecution is permanently barred unless commenced within the prescribed limitations period. Within that period, however, the framework of our governmental structure provides that certain other safeguards be applied on a case-by-ease basis. The Due Process Clause of the Fifth Amendment forbids the government to delay the commencement of a criminal prosecution when the delay is unjustified by the legitimate needs of the investigation and/or prosecution and when it either results from a bad-faith choice of strategy on the government’s part or results in the substantial impairment of the suspect’s ability to erect a defense. After commencement of the prosecution, on the other hand, the Speedy Trial Clause of the Sixth Amendment requires that the Court engage in a delicate ad hoc balancing of the relative weight of a number of interests and considerations. U. S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); U. S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); U. S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Within the confines of the Sixth Amendment requirements, and therefore affording a broader mantle of protection to the individual suspect, are the provisions of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and of Rule 48(b). The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . be deprived of life, liberty, or property without due process of law,” while the Sixth Amendment’s first words are: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . ” The different operation of these two clauses, insofar as relevant to the instant inquiry, was clearly expounded in the line of cases cited above. In Marion and Lovasco the Supreme Court declared that in order to ground" }, { "docid": "22432167", "title": "", "text": "nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures.... Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement.”); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”). When determining whether a criminal defendant has been deprived of his or her right to timely process at the trial level, the Supreme Court has established a balancing test to be applied on an ad hoc basis. Barker, 407 U.S. at 530, 92 S.Ct. at 2191. Four factors should be assessed and balanced: “(1) [l]ength of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.” Id. (num bers added). The fourth factor “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Id. at 532, 92 S.Ct. at 2193. The “Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. Although Barker addressed only a defendant’s Sixth Amendment right to a speedy trial, the balancing test the Court enunciated provides an appropriate framework for evaluating whether a defendant’s due process right to a timely direct criminal appeal has been violated. See Rheuark v. Shaw, 628 F.2d at 303 (“The factors of Barker are preferred [over] the standard announced in United States v. Lovasco, 431 U.S. 783 [97 S.Ct. 2044, 52 L.Ed.2d 752] ... (1977) [concerning pre-indictment delay], since the reasons for constraining appellate delay are analogous to the motives underpinning the Sixth Amendment right to a speedy trial.”) (footnote omitted); DeLancy v. Caldwell, 741 F.2d 1246, 1248 (10th Cir.1984) (“We agree with the Fifth Circuit that the right to avoid unreasonable delay in" }, { "docid": "16455340", "title": "", "text": "the indictment should have been dismissed. The sanctions provided in 18 U.S.C. § 3162 are not effective until July 1, 1979. See 18 U.S.C. § 3163; and United States v. Grismore, 10 Cir., 564 F.2d 929, 932. Until then the time limits are merely directive. United States v. Carpenter, 9 Cir., 542 F.2d 1132, 1134. The defendant’s argument that he was denied his Sixth Amendment right to a speedy trial remains to be considered. In United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468, a speedy trial case, the Court said that determination of the issue involves “a delicate judgment based on the circumstances of each case.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, says that: “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis” This statement is followed by an enumeration of four factors which should be assessed. They are: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 52 L.Ed.2d 752, refers to Marion and says that whether preaccusation delay requires dismissal cannot be determined in the abstract. In United States v. Hay, 10 Cir., 527 F.2d 990, 996, cert. denied 425 U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176, we said: “The test for determining when the right to a speedy trial has been violated is a balancing test * * *.” In the pending case the trial court made no effort to determine the reason for the delay or the prejudice, if any, to the defendant. The record shows the court gave no consideration to the claim of denial of speedy trial until over four months after the jury verdict. The court made no effort to balance the rights of the defendant and the actions of the prosecution. For all that the record shows, the court determined the issue in the abstract. The Supreme Court has said that this cannot be done. The court did" } ]

[ { "docid": "18769901", "title": "", "text": "La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982) — ambiguous because while the court said that “a guest is entitled to a high degree of care and protection,” it promptly added that “the innkeeper has a duty to take reasonable precautions against criminals” (id. at 1053, emphasis added). Conceivably, as suggested in Dorn, it is no longer the rule in Illinois either, though Yamada v. Hilton Hotel Corp., 60 Ill.App.3d 101, 112, 17 Ill.Dec. 228, 237, 376 N.E.2d 227, 236 (1977), decided after Dorn, suggests it is. The rule may simply be an inadvertent extrapolation from the principle (see Restatement (Second) of Torts, § 314A and comment e (1965); Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 412) that an innkeeper, like a common carrier but unlike a mere bystander, has a duty to prevent (or rescue from) dangers created by third parties. See Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 331, 125 N.E.2d 544, 546 (1955), seeming to equate these distinct propositions. The rule, if it is a rule, may be defensible however; and whether it is or is not defensible is relevant to whether it is a genuine rule or a mere inadvertence. Ordinarily the innkeeper knows much more about the hazards of his trade than the guest, and can take reasonable (=cost-justified) steps to reduce them, while ordinarily the guest can do little to protect himself against them. See Banks v. Hyatt Corp., 722 F.2d 214, 226-27 (5th Cir.1984). Pheasant Run, Inc. knows more about the danger of break-ins to guest rooms at its lodge than the guests do, and more about the alternative methods for preventing such break-ins, as well. Maybe this asymmetry in the parties' position should make the defendant’s standard of care higher than it would be in, say, an ordinary collision case. See Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 6-8, 203 N.E.2d at 708-09. But it does not make the defendant’s liability strict. In this case there was evidence of negligence but not so much as to establish liability as a matter of law or" } ]

[ { "docid": "11700319", "title": "", "text": "a degree of [intensity that would cause a reasonable [physician] to exercise ... the caution commensurate with the potential danger .... A clear cautionary statement setting forth the exact nature of the dangers involved would be necessary to fully protect the seller. Mahr v. G.D. Searle & Co., 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214, 1230 (Ill.App.Ct.1979). See also Allan E. Korpela, Annotation, Failure to Warn as Basis of Liability under Doctrine of Strict Liability in Tort, 1973 WL 33912, 53 A.L.R.3d 239 (1974) (collecting cases). Correspondingly, the learned intermediary doctrine is not a bar to liability where a manufacturer never communicated an adequate warning to physicians.- In Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35 (Ill.2002), the court explained that “a drug manufacturer that only share[s] information about its product’s toxicity with its own employees breache[s] its duty to warn the medical community because without this information, doctors [cannot] provide appropriate and comprehensive medical advice for their patients. This prevents] them from functioning as ‘learned intermediaries’ to protect their patients’ best medical interests.” Id. at 43. The court said, “Doctors who have not been sufficiently warned of the harmful effects of a drug cannot be considered ‘learned intermediaries.’ ” Id. (quoting Proctor v. Davis, 291 Ill.App.3d 265, 225 Ill.Dec. 126, 682 N.E.2d 1203, 1215 (Ill.App.Ct.1997)) (emphasis in original). See also AMF, Inc. v. Victor J. Andreiv High Sch., 172 Ill.App.3d 337, 122 Ill.Dec. 325, 526 N.E.2d 584, 588 (Ill.App.Ct.1988) (“Critical to imposing liability on physicians who prescribe drugs is their failure to communicate warnings to their patients which the manufacturer communicated to them. In the present ease, however, ... AMF failed to give adequate warnings to the defendants in the first instance, ... and, therefore, the learned intermediary doctrine is, if for no other reason, inapplicable.”). Most importantly, under Illinois law the issue of whether a manufacturer gave adequate warning of the known dangerous propensities of a drug so as to trigger the learned intermediary doctrine is one of fact. In Hansen the Supreme Court of Illinois instructed, “the adequacy of" }, { "docid": "21460883", "title": "", "text": "the majority of jurisdictions no duty to warn of the possibility of a rare and unusual allergic reaction. See W. Keeton, Prosser and Keeton on the Law of Torts § 96, at 687 (5th ed. 1984); 72 C.J.S. Products Liability § 26, at 42 (Supp.1975) (“There is generally no duty to warn of harm from an unusual allergic reaction from use by a miniscule percentage of users, where the risk is so rare that the injury is considered to result from a personal idiosyncracy of the consumer.”) (footnotes omitted); Annotation, Unusual Susceptibility to Injury, 26 A.L.R.2d 963 (1952). Another way of stating this rule is that the plaintiffs own idiosyncracy or allergy is the proximate cause of his injury, not the failure to warn. Presbrey v. Gillette Co., 105 Ill.App.3d 1082, 1091, 61 Ill.Dec. 816, 823, 435 N.E.2d 513, 520 (1982). Liability should be imposed on a manufacturer only if it has actual knowledge that its product might cause harm to an identifiable class of sensitive users or if, based on the state of scientific knowledge, it is chargeable with such knowledge. Howard v. Avon Prods., Inc., 155 Colo. 444, 454, 395 P.2d 1007, 1012 (1964). The plaintiff has offered no reason why Wisconsin would not follow these general principles with respect to liability of manufacturers for failure to warn of a product’s danger to an unusually susceptible consumer. In the circumstances of this case, we find no reason to impose upon Pacific World a duty to warn its consumers of a potential allergic reaction to cyanoacrylate glue. Pacific World sold one million nail kits and the plaintiffs was the only reported adverse reaction. The medical literature, at the time Pacific World assembled and marketed the kits, indicated that although the glue’s fumes were irritating, allergic reactions were “considered virtually impossible.” A. Fischer, Contact Dermatitis 559 (1986). The plaintiff is now able to point to a few other cases of allergic contact dermatitis caused either by cya-noacrylate glue or by other artificial nail products. These all came to light shortly after plaintiff suffered her injury. The plaintiff has not come" }, { "docid": "9662245", "title": "", "text": "Coleman already presented in her original complaint, adding little, if anything, of substance to her case. Although the federal rules generally favor a liberal amendment policy, justice does not demand that Coleman be given leave to append frivolous or repetitive allegations to her complaint at any stage in the proceedings. In light of Coleman’s tardiness in requesting this amendment and the insubstantial character of the new allegations, the district court’s decision denying Coleman leave to amend her complaint was not an abuse of its discretion. B. The Duty to Warn Illinois law imposes no duty to warn of open and obvious risks. See Cope v. Doe, 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023 (1984) (no duty to warn seven-year-old boy who drowned in pond); Alop by Alop v. Edgewood Valley Community Ass’n, 154 Ill.App.3d 482, 107 Ill.Dec. 355, 507 N.E.2d 19 (1st Dist.1987) (no duty to guard against risk of child falling from slide onto asphalt surface). Citing the Restatement (Second) of Torts, several Illinois courts have concluded that even a child should reasonably be expected to appreciate certain obvious dangers, such as those posed by fire, bodies of water or lofty heights. See Cope, 102 Ill.2d at 287, 80 Ill.Dec. at 44, 464 N.E.2d at 1027 (citing Restatement (Second) of Torts § 339 comment j, at 203); Alop, 154 Ill.App.3d at 486, 107 Ill.Dec. at 489, 507 N.E.2d at 22 (same). Illinois law is thus in harmony with the Restatement, which recommends that property owners generally not be compelled to take precautions against known or evident risks. See Restatement (Second) of Torts § 343A comment e, at 219. Ramada was not obliged to post a warning notifying Coleman and other participants of the blatant risks posed by this obstacle course. The game presented no hidden dangers, for even Coleman concedes that the ordinary playground slide from which she fell was in perfectly good repair. The only risk Coleman did incur — the increased probability of a fall due to the reversal in the slide’s use — should have been apparent to her from the outset. Prom the" }, { "docid": "14212289", "title": "", "text": "was changed to electric power. Therefore, even if National had failed to supply guards to the pump, such a failure appears not to have been a cause of the injury. Any guards National would have provided would have been unsuited to the machine once it had been changed to electric power. In addition, we believe that Illinois negligence law would place no duty on National to provide guards for the oil pump. Under Illinois law, all manufacturers have a nondelegable duty to produce a product that is reasonably safe. Phillips v. United States Waco Corp., 163 Ill.App.3d 410, 114 Ill.Dec. 515, 519, 516 N.E.2d 670, 674 (1987). In a products liability action based on ordinary negligence, “[t]he manufacturer of a product owes a duty to design the product so that it is reasonably safe for its intended use and for any reasonably foreseeable use ... and is liable in tort for the negligent design of a product that imposes an unreasonable risk of harm upon the user.” Sanchez v. Bock Laundry Machine Co., 107 Ill.App.3d 1024, 63 Ill.Dec. 638, 641, 438 N.E.2d 569, 572 (1982); see also Cornstubble v. Ford Motor Co., 178 Ill.App.3d 20, 127 Ill.Dec. 55, 57, 532 N.E.2d 884, 886 (1988) (in order to recover on a design negligence theory, the plaintiff must establish that “the product is defective or not reasonably safe,” and that “the defendant breached a duty owed to plaintiff”); Kokoyachuk v. Aeroquip Corp., 172 Ill.App.3d 432, 122 Ill.Dec. 348, 350, 526 N.E.2d 607, 609 (1988) (“For a plaintiff to prevail under a theory of design negligence, he must show that the quality of a particular product is insufficient and that the duty of care on the part of the manufacturer required it to design something safer for the user.”)- However, a manufacturer satisfies this duty of care when it “has endeavored to construct a product to function properly for the purpose for which it is designed and its operation creates no danger that is not known to the user.” Flaugher v. Sears, Roebuck & Co., 61 Ill.App.3d 671, 18 Ill.Dec. 873, 876, 378" }, { "docid": "6634242", "title": "", "text": "a groundless claim does not invoke federal jurisdiction, Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1145 (7th Cir.1997), the district judge must dismiss that defendant before ruling on the plaintiffs motion to remand. Taking the first of the plaintiffs two arguments for why complete diversity is absent, we consider whether the judge was right to think that the claim against Niemann had so little merit that Niemann’s joinder as a defendant was fraudulent in the sense just explained. The answer turns on the applicability to a pharmacy of the “learned intermediary” doctrine, a common law doctrine, in force as of 2002 in all but two states, Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016-17 (8th Cir.2004); In re Norplant Contraceptive Products Liability Litigation, 215 F.Supp.2d 795, 806-09 (E.D.Tex.2002) — and Illinois is not one of the two. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (1987); Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 262 Ill.Dec. 815, 766 N.E.2d 1118, 1127 (2002). As usually formulated (the significance of the qualification “usually” will become clear shortly), the doctrine excuses the manufacturer of a prescription drug from having to warn consumers of the drug’s adverse side effects; it need warn only physicians, so that armed with the warning they can make a medical decision to pre scribe or not to prescribe the drug for a particular patient. E.g., Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 207 (5th Cir.2008); In re Prempro Products Liability Litigation, 514 F.3d 825, 830 (8th Cir.2008); Pittman v. Upjohn Co., 890 S.W.2d 425, 429 (Tenn.1994). The prescribing physician is the “learned intermediary” — the medical professional who, equipped with the knowledge imparted to him by the drug’s manufacturer, determines, weighing benefit against risk, the drug’s suitability for a particular patient. Niemann is (so far as bears on this case) a pharmacy, and the plaintiff argues that therefore, since it is not a manufacturer, it is not insulated by the doctrine" }, { "docid": "11700318", "title": "", "text": "warning of known dangerous propensities of the drug to physicians: Because the duty to warn is a duty to [adequately warn, it is imperative that the communication of the warnings be given in a manner reasonably calculated to reach the medical profession. * * * * * * [The warning] must be in such [fjorm that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use (here, the members of the medical profession) .... [T]he [c]ontent of the warning must be of such a nature as to be comprehensible to the average [physician] and to convey a fair indication of the nature and extent of the danger to the mind of the reasonably prudent [physician] ---- [T]he question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product. Implicit in the duty to warn is the duty to warn with a degree of [intensity that would cause a reasonable [physician] to exercise ... the caution commensurate with the potential danger .... A clear cautionary statement setting forth the exact nature of the dangers involved would be necessary to fully protect the seller. Mahr v. G.D. Searle & Co., 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214, 1230 (Ill.App.Ct.1979). See also Allan E. Korpela, Annotation, Failure to Warn as Basis of Liability under Doctrine of Strict Liability in Tort, 1973 WL 33912, 53 A.L.R.3d 239 (1974) (collecting cases). Correspondingly, the learned intermediary doctrine is not a bar to liability where a manufacturer never communicated an adequate warning to physicians.- In Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35 (Ill.2002), the court explained that “a drug manufacturer that only share[s] information about its product’s toxicity with its own employees breache[s] its duty to warn the medical community because without this information, doctors [cannot] provide appropriate and comprehensive medical advice for their patients. This prevents] them from functioning as ‘learned intermediaries’" }, { "docid": "18937078", "title": "", "text": "to take precautions against such an accident might not have been negligent, cheap as those precautions would have been. Negligence is a function of the likelihood of an accident as well as of its gravity if it occurs and of the ease of preventing it, e.g., Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 235 Ill.Dec. 905, 706 N.E.2d 460, 463 (1998); Bucheleres v. Chicago Park District, supra, 216 Ill.Dec. 568, 665 N.E.2d at 836-37; McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1556-57 (7th Cir.1987) (applying Illinois law); Bammerlin v. Navistar Int’l Transportation Corp., 30 F.3d 898, 902 (7th Cir.1994); Liviano v. Hobart Corp., 132 F.3d 124, 131 n. 12 (2d Cir.1998); United States v. Car roll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L.Hand, J.), and the obviousness of a risk may make the likelihood of its materializing so slight that there is no need to try to eliminate the risk. That is the insight behind the “open and obvious” rule of negligence law, a “rule” that the Illinois courts now treat as a consideration in applying the negligence standard, Ward v. K mart Corp., 136 Ill.2d 132,143 Ill.Dec. 288, 554 N.E.2d 223, 228-32 (1990); Deibert v. Bauer Bros. Construction Co., supra, 152 Ill.Dec. 552, 566 N.E.2d at 245, rather than as a defense. If the danger of an accident is itself a sufficient, and costless, warning, there may be no need for the potential injurer to take (additional) precautions. The incremental benefits would be negligible; they would not exceed the costs. Ordinarily the danger posed by unshielded machinery is obvious in the sense just explained, the sense that makes “open and obvious” a critical and often a controlling factor in assessing negligence. E.g., Estrada v. Schmutz Mfg. Co., 734 F.2d 1218 (7th Cir.1984); Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509, 515 (1988); cf. Anderson v. P.A. Radocy & Sons, Inc., 67 F.3d 619, 623 (7th Cir.1995); LeSuer v. United States, 617 F.2d 1197, 1200 (5th Cir.1980). But not always, McDonald v. Sandvik Process Systems, Inc., 870 F.2d 389, 393-94 (7th" }, { "docid": "7680350", "title": "", "text": "Eno, 139 N.H. 708, 662 A.2d 272, 277 (1995); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 36 (4th ed.1984). But the statutory definition does not come into play unless the tort plaintiff establishes that the defendant owes a duty of care to the person he injured (ordinarily the plaintiff, though in this case the plaintiffs decedent), because tort liability depends on the violation of a duty of care to the person injured by the defendant’s wrongful conduct. E.g., Ward v. K Mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226-27 (1990); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 395-96 (1987); Swett v. Village of Algonquin, 169 Ill.App.3d 78, 119 Ill.Dec. 838, 523 N.E.2d 594, 597 (1988). Ordinarily the scope of the tort duty of care — whether it extends to bystanders, customers, investors, unforeseeable plaintiffs (as in the famous Palsgraf case), and so forth, see Edwards v. Honeywell, Inc., 50 F.3d 484, 488-90 (7th Cir.1995), and cases cited there — is given by the common law. E.g., Ward v. K Mart Corp., supra, 143 Ill.Dec. 288, 554 N.E.2d at 226-27; Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991); Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372, 377 (1994); Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 and n. 1 (1990); Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 83 P.3d 322, 328-29 (2004); Bernethy v. Walt Failor’s, Inc., 97 Wash.2d 929, 653 P.2d 280, 282 (1982). And although the legislature can and sometimes does create a duty of care to a new class of injured persons, the mere fact that a statute defines due care does not in and of itself create a duty enforceable by tort law. E.g., Board of Education v. Du Page County Election Comm’n, 341 Ill.App.3d 327, 276 Ill.Dec. 195, 793 N.E.2d 954, 957-58 (2003). The distinction is well explained in Marquay v. Eno, supra, 662 A.2d at 277: “whether or not the common law recognizes a cause" }, { "docid": "9734616", "title": "", "text": "through momentary inattention. Potential injurers may therefore be required to take some care for the protection of the negligent, especially when the probability of negligence is high or the costs of care very low. See Prosser and Keeton on the Law of Torts, supra, § 33, at pp. 198-99. You cannot close your eyes while driving through an intersection, merely because you have a green light. If, as the jury could have found, Conrail could have avoided this accident by the essentially costless step of blowing the train’s horn, it may have been duty-bound to do so even if only a careless person would have been endangered by a sudden movement of the train. Conrail’s next argument is that the danger to Davis was open and obvious, and that this is a complete defense to liability. We agree with the premise but not the conclusion. The Illinois Supreme Court has held that, as a corollary to the replacement of contributory by comparative negligence, assumption of risk is no longer a complete defense to liability for negligence. Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 119, 73 Ill.Dec. 337, 344, 454 N.E.2d 197, 204 (1983); Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 433-37, 90 Ill.Dec. 237, 241-43, 481 N.E.2d 1037, 1041-43 (1985). This proposition must not be taken too literally. If you agree to engage in a dangerous activity, such as hang gliding or technical rock climbing or riding a high-spirited horse, and one of the known dangers materializes with no negligence by the defendant, you cannot recover damages from him. Clark v. Rogers, 137 Ill.App.3d 591, 92 Ill.Dec. 136, 484 N.E.2d 867 (1985). There is by hypothesis no negligence in such a case and the term “assumption of risk” as used in it merely explains why there is not rather than providing a defense to a prima facie case of negligence. The defense of assumption of risk — the defense that ceased to be a complete defense when contributory negligence ceased to be a complete defense — comes into play if the defendant’s negligence created a danger that was" }, { "docid": "10513820", "title": "", "text": "case has been that it did not know of the dangerous propensity of dienestrol. No warning accompanied the drug. Thus, comment k, by its terms, could not provide a defense in this case. Filler v. Rayex Corp., 435 F.2d 336, 338 (7th Cir. 1970). See also Toole v. Richardson-Merrell Inc., 251 Cal. App.2d 689, 60 Cal.Rptr. 398 (1967). Accordingly, White never attempted to assert an affirmative defense based on comment k. Rather, White correctly argued that comment j governed this cause of action for the dispositive issue in this case is whether White should be held liable for its failure to warn of the risk of cancer to the offspring of pregnant women who used dienestrol. If White knew, or by the application of reasonable human skill and foresight should have known, of the risk of cancer, White is liable to Needham for its failure to warn. Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980). Because White failed to warn, comment k could not apply in this case, and evidence of the efficacy, or inefficacy, of dienestrol was irrelevant. Alternatively, the district court ruled that efficacy evidence was admissible because it was relevant to prove that dienestrol was defective. The court held that an ineffective product is a defective product citing Cunningham v. MacNeal Memorial Hospital. Needham v. White Laboratories, Inc., No. 76 C 1101 (N.D.Ill. Mar. 19, 1980) (order denying post-trial motion to reconsider). We disagree. Cunningham held that a product that contains an adulterating impurity is defective. 47 Ill.2d at 454, 456, 266 N.E.2d at 902, 904. Plaintiff does not claim that the dienestrol her mother took in 1952 contained any impurity. Thus, Cunningham does not govern this case. Nothing in Cunningham supports the district court’s interpretation of section 402A. Of course, the error in admitting the efficacy evidence alone is not sufficient ground for reversal if the error was harmless. Our reading of the record convinces us, however, that this error was not harmless, Fed. R.Civ.P. 61, and, consequently, we reverse. The trial court instructed the jury that it" }, { "docid": "11700314", "title": "", "text": "Inc., 10 F.Supp.2d 1042, 1044 (E.D.Wis.1998). Moreover, this burden cannot be shifted to the plaintiff by, for example, pointing to formal defects in the plaintiffs submissions to the court. See McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) (a party asserting federal jurisdiction bears the burden of proving that a case is properly in federal court and may not “be relieved of his burden by any formal procedure”); Hart v. Bayer Corp., 199 F.3d 239, 247 n. 6 (5th Cir.2000) (fraudulent joinder is not established by a plaintiffs failure to plead up to the requirements of Rule 9(b) of the Federal Rules of Civil Procedure); Waterloo Coal Co. v. Komatsu Mining Sys., Inc., No. C2-02-560, 2003 WL 124137, at *4 (S.D.Ohio Jan.9, 2003) (same). B. Fraudulent Joinder 1. Count IV of the Complaint (Strict Products Liability) As discussed, Count IV of McNichols’ complaint asserts a claim in strict products liability against the Johnson & Johnson Defendants and Walgreens. The Johnson & Johnson Defendants argue that this claim is barred by the learned intermediary doctrine, which provides that, where a manufacturer of a prescription drug gives adequate warning to physicians of the drug’s known dangerous propensities, the manufacturer and pharmacists dispensing the drug are relieved of a duty to warn the drug’s potential users; instead, the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. See Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (Ill.1987); Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518, 519-20 (Ill.App.Ct.1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758, 761-62 (Ill.App.Ct.1988); Eldridge v. Eli Lilly & Co., 138 Ill.App.3d 124, 92 Ill.Dec. 740, 485 N.E.2d 551, 552-53 (Ill.App.Ct.1985). The Court is skeptical about whether the learned intermediary doctrine is a proper basis for a claim of fraudulent joinder, as it implicates issues about foreseeability and causation germane to the liability of both the Johnson & Johnson Defendants and Walgreens. In" }, { "docid": "10513819", "title": "", "text": "Laboratories, 399 F.2d 121 (9th Cir. 1968). B The district court ruled that evidence that dienestrol was ineffective in preventing miscarriages was admissible because it was relevant to refute an affirmative defense based on comment k of section 402A. Needham v. White Laboratories, Inc., No. 76 C 1101 (N.D.Ill., Aug. 13, 1979) (order denying pre-trial motion to exclude efficacy evidence). This ruling reflects a misunderstanding of the scope of comment k. A comment k defense is available only where the manufacturer warned of the danger, yet the product remains dangerous even if the warning is followed. In such a case, the manufacturer is exempted from strict liability only if the apparent usefulness of the product outweighs its known risk. Singer v. Sterling Drug, Inc., 461 F.2d 288, 290 (7th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 131, 34 L.Ed.2d 132 (1972). Since the usefulness of the product must outweigh the product risk before a comment k defense is available, evidence of product efficacy is relevant in a comment k case. White’s defense throughout this case has been that it did not know of the dangerous propensity of dienestrol. No warning accompanied the drug. Thus, comment k, by its terms, could not provide a defense in this case. Filler v. Rayex Corp., 435 F.2d 336, 338 (7th Cir. 1970). See also Toole v. Richardson-Merrell Inc., 251 Cal. App.2d 689, 60 Cal.Rptr. 398 (1967). Accordingly, White never attempted to assert an affirmative defense based on comment k. Rather, White correctly argued that comment j governed this cause of action for the dispositive issue in this case is whether White should be held liable for its failure to warn of the risk of cancer to the offspring of pregnant women who used dienestrol. If White knew, or by the application of reasonable human skill and foresight should have known, of the risk of cancer, White is liable to Needham for its failure to warn. Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980). Because White failed to warn, comment k could not apply in this" }, { "docid": "23526245", "title": "", "text": "501, 506, 436 N.E.2d 251, 256 (1982). How are these principles — no duty of care (that is, no defense of contributory negligence) but a duty of reasonable, not just any old, reliance — to be reconciled? We struggled with this question in Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366, 370-71 (7th Cir.1988), as did the Illinois Appellate Court in Chicago Title & Trust Co. v. First Arlington National Bank, supra, 118 Ill.App.3d at 409, 73 Ill.Dec. at 632, 454 N.E.2d at 729; cf. Prosser and Keeton on the Law of Torts § 108, at pp. 749-53 (5th ed. 1984). We think it comes down to this: while the victim of an ordinary accident is required to use the ordinary care of an average person (even if he is below average in his ability to take care) — and thus to avoid being negligent— the victim of a deliberate fraud is barred only if he has notice of the fraud, and so he need only avoid deliberate or reckless risk- taking. Smith v. Ethell, 144 Ill.App.3d 171, 98 Ill.Dec. 742, 494 N.E.2d 864 (1986). These attenuated duties of care that a fraud victim has are two, not one. The victim “cannot close his eyes to a known risk.” Teamsters Local 282 Pension Trust Fund v. Angelos, supra, 762 F.2d at 530. But, beyond that—and the crux of the present case—he cannot close his eyes to a risk that is obvious, Costello v. Liberty Mutual Ins. Co., 38 Ill.App.3d 503, 507, 348 N.E.2d 254, 257 (1976), even if he does not himself perceive the risk. Although not required to expend a substantial effort to protect himself (as a tort victim in a regime of contributory negligence will often be required to do), the potential victim of a fraud may not ignore a manifest danger. That is recklessness. It differs by only a shade, if that, from intentional conduct—the conscious assumption of risk that defeats liability under the first aspect of the duty of reasonable reliance as we conceive it. United States v. Josefik, 753 F.2d 585, 589" }, { "docid": "9734611", "title": "", "text": "if the yard is very busy, if the horn were sounded only in the unusual case where there was more than average danger from a sudden movement the danger of cacophony would be diminished. The defendants’ strongest argument is that Conrail had no duty to warn persons who might be in or on or under the train— given the blue flag rule. There is in general no duty to anticipate and take precautions against the negligence of another person. Such a requirement would tend to induce potential injufers to take excessive safety precautions relative to those taken by potential victims; the cost of safety would rise. Thus, “If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted.” Hession v. Liberty Asphalt Products, Inc., 93 Ill.App.2d 65, 74, 235 N.E.2d 17, 22 (1968). See Kofahl v. Delgado, 63 Ill. App.3d 622, 626, 20 Ill.Dec. 429, 433, 380 N.E.2d 407, 411 (1978); LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., 232 U.S. 340, 352, 34 S.Ct. 415, 417, 58 L.Ed. 631 (1914) (separate opinion of Holmes, J.); Phillips v. Croy, 173 Ind.App. 401, 405, 363 N.E.2d 1283, 1285 (1977); Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 451 (7th Cir.1984) (dissenting opinion). It is true that if precautions necessary to prevent an undue risk of injury to persons who are exercising due care are omitted and a careless person is injured as a result, then in a jurisdiction such as Illinois where the complete defense of contributory negligence has given way to the partial defense of comparative negligence the careless victim can recover some damages. But he can do so, in general, only if there was a breach of duty to the careful. The defendants argue that the rule regarding blue flagging excuses the crew from any duty of care to persons who might be injured by a sudden starting of" }, { "docid": "12957783", "title": "", "text": "sufficient to create a question of fact, even without alternative liability. 2. Legal cause The essence of legal cause is foreseeability of the injury: the plaintiffs injury must be of a type that a reasonable person would see as a likely result of his conduct. Lee, 178 Ill.Dec. 699, 605 N.E.2d at 503. There may be more than one proximate cause of an injury; under Illinois law of comparative negligence, the finder of fact must make the final determination of who is responsible for Mr. Erickson’s injury and to what extent. See Slager v. Commonwealth Edison Co., Inc., 230 Ill.App.3d 894, 172 Ill.Dec. 427, 595 N.E.2d 1097, 1105 (1992). The question of foreseeability in the context of proximate cause should be taken from the jury only when the plaintiffs injury is bizarre or freakish, or when it would be unwise as a matter of policy to hold the defendants accountable. Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill.App.3d 32, 223 Ill.Dec. 674, 680 N.E.2d 407, 415 (1997); Nelson v. Commonwealth Edison Co., 124 Ill.App.3d 655, 80 Ill.Dec. 401, 465 N.E.2d 513, 519 (1984). Under the learned intermediary doctrine the manufacturer’s duty to warn runs to the physician, so the defendants argue that the causal chain is broken because Ms. Erickson cannot show that Mr. Erickson’s doctors were not independently aware of the risk, or that they would not have treated him the same way even if they knew the risk. This merely repeats the defendants’ arguments about the standard of care and presumes that adequate warnings were given, a..question that I have already said cannot be resolved here. In any event, the plaintiffs are entitled at this stage to a presumption that a learned intermediary would have heeded the warnings given. See Mahr v. G.D. Searle, 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214, 1233 (1979). The defendants seek to bar Dr. Mosley’s opinion that Mr. Erickson, a mild hemophiliac, could have been treated with cryoprecipitate rather than with factor concentrate. They argue that Dr. Mosley is not. qualified to offer that opinion because he is not an" }, { "docid": "11700315", "title": "", "text": "that this claim is barred by the learned intermediary doctrine, which provides that, where a manufacturer of a prescription drug gives adequate warning to physicians of the drug’s known dangerous propensities, the manufacturer and pharmacists dispensing the drug are relieved of a duty to warn the drug’s potential users; instead, the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. See Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (Ill.1987); Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518, 519-20 (Ill.App.Ct.1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758, 761-62 (Ill.App.Ct.1988); Eldridge v. Eli Lilly & Co., 138 Ill.App.3d 124, 92 Ill.Dec. 740, 485 N.E.2d 551, 552-53 (Ill.App.Ct.1985). The Court is skeptical about whether the learned intermediary doctrine is a proper basis for a claim of fraudulent joinder, as it implicates issues about foreseeability and causation germane to the liability of both the Johnson & Johnson Defendants and Walgreens. In Simmons v. Norfolk Southern Railway Co., 324 F.Supp.2d 914 (S.D.Ill.2004), the Court explained that a claim of fraudulent joinder that “indicate[s] that the plaintiffs case [is] ill-founded as to all the defendants” is one which “manifestly [goes] to the merits of the action as an entirety, and not to the joinder” and is “not such as to require the state court to surrender its jurisdiction.” Id. at 917 (quoting Chesapeake & Ohio By. Co. v. Cockrell, 232 U.S. 146, 153-54, 34 S.Ct. 278, 58 L.Ed. 544 (1914)). The issue of whether the Johnson & Johnson Defendants gave adequate warning to physicians and users of Ortho Evra is at the heart of this ease, and the Court questions whether a finding that Walgreens is shielded from liability by the learned intermediary doctrine might have preclusive effects with respect to the Johnson & Johnson Defendants as well. Presumably a determination that Walgreens is immune from liability under the learned intermediary doctrine would be the law of the case as to the Johnson & Johnson Defendants also. See" }, { "docid": "7680349", "title": "", "text": "statute in regard to the Norman child, and that either there is an implied right of action for damages under the statute, or, if not, then because the statute is intended for the protection of children such as the abused Cuyler child a violation of it is prima facie evidence of negligence under the common law of Illinois. The district court agreed with the plaintiffs second ground and therefore did not address the first, but the plaintiff , as is her right asks us to affirm on the first if we disagree with the district court on the second. We begin with the second since it’s the one the district court considered. A conventional principle of tort law, in Illinois as elsewhere, is that if a statute defines what is due care in some activity, the violation of the statute either conclusively or (in Illinois) presumptively establishes that the violator failed to exercise due care. E.g., Abbasi ex rel. Abbasi v. Paraskevoulakos, 187 Ill.2d 386, 240 Ill.Dec. 700, 718 N.E.2d 181, 185 (1999); Marquay v. Eno, 139 N.H. 708, 662 A.2d 272, 277 (1995); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 36 (4th ed.1984). But the statutory definition does not come into play unless the tort plaintiff establishes that the defendant owes a duty of care to the person he injured (ordinarily the plaintiff, though in this case the plaintiffs decedent), because tort liability depends on the violation of a duty of care to the person injured by the defendant’s wrongful conduct. E.g., Ward v. K Mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226-27 (1990); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 395-96 (1987); Swett v. Village of Algonquin, 169 Ill.App.3d 78, 119 Ill.Dec. 838, 523 N.E.2d 594, 597 (1988). Ordinarily the scope of the tort duty of care — whether it extends to bystanders, customers, investors, unforeseeable plaintiffs (as in the famous Palsgraf case), and so forth, see Edwards v. Honeywell, Inc., 50 F.3d 484, 488-90 (7th Cir.1995)," }, { "docid": "14950105", "title": "", "text": "336, 195 Cal.Rptr. 867, 871 (1983) (“A duty to warn or disclose danger arises when an article is or should be known to be dangerous for its intended use, either inherently or because of defects.”); Sollami v. Eaton, 319 Ill.App.3d 612, 254 Ill.Dec. 335, 747 N.E.2d 375, 380-81 (2001) (“A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given.”); Brown v. Glade and Grove Supply, Inc., 647 So.2d 1033, 1035 (Fla.Dist.Ct.App.1994) (“a manufacturer ... who knows or has reason to know that the product is likely to be dangerous in normal use has a duty to warn those who may not fully appreciate the possibility of such danger.”). In cases brought against manufacturers and suppliers for injuries resulting from the use of hazardous materials or other unreasonably dangerous products, courts have generally held that such manufacturers owe a duty to warn foreseeable users of the latent dangers of the product. See Hunnings, 29 F.3d at 1484-85 (duty to warn users of dangers associated with hazardous substance); Tampa Drug Co. v. Wait, 103 So.2d 603, 607 (Fla.1958) (duty to warn those who might use an inherently dangerous product of its dangerous potentialities); Venus v. O’Hara, 127 Ill.App.3d 19, 82 Ill.Dec. 143, 468 N.E.2d 405, 409-10 (1984) (duty to warn users of dangerous propensities of hazardous substance); Groll v. Shell Oil Co., 148 Cal.App.3d 444, 448, 196 Cal.Rptr. 52 (1983) (duty to warn user of dangerous propensities of the product). Some courts have also held that the duty to warn extends to “third persons exposed to a foreseeable and unreasonable risk of harm by the failure to warn.” McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 68-69, 226 N.Y.S.2d 407, 181 N.E.2d 430 (1962). While plaintiffs in the present actions do not allege that the contamination of their wells was the direct result of their own use of gasoline containing MTBE, the allegations are sufficient to show that the harm suffered by the plaintiffs was a" }, { "docid": "10513810", "title": "", "text": "injury and dienestrol before March 22, 1974, was the testimony of her father and her gynecologist, Dr. Jerome Warren. Needham’s father testified that he knew of the connection between Need-ham’s injury and the dienestrol on March 1, 1974, but that he did not discuss the possible connection with his daughter before March 22, 1974. SOL at 132, 143 & 188. Dr. Warren testified that he discussed the connection between the cancer and dienestrol with plaintiff and her mother at a meeting on March 2, 1974. SOL at 84. Plaintiff and her mother, however, testified that no meeting occurred on March 2, 1974, and Dennis Rauen testified that he was with Needham all day March 2, 1974. SOL at 230, 284, 395-99. The jury’s function is to resolve the conflicts in the testimony and weigh the credibility of the witnesses. Legally sufficient evidence in the record supports the jury’s resolution of the conflicts in favor of the plaintiff, and we affirm its finding that this suit is not time-barred. Ill White claims that the district court erred in permitting Needham to introduce evidence that dienestrol was not effective in preventing miscarriages. We agree with defendant and reverse and remand. In ruling that inefficacy evidence was admissible, the district court erroneously interpreted Illinois case law and the comments to section 402A of the Restatement (Second) of Torts. A Section 402A of the Restatement (Second) of Torts, which the Illinois Supreme Court adopted in Suvada v. White Motor Co., 32 Ill.2d 612, 621, 210 N.E.2d 182, 187 (1965), governs this cause of action. See also Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980); Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970). Section 402A provides that one who sells a product in a “defective condition unreasonably dangerous” is subject to strict liability for any harm caused by the product defect. A product may be in a “defective condition unreasonably dangerous” because the product is contaminated by an impurity or because the product is unaccompanied by a warning of the product’s dangerous propensities" }, { "docid": "5130480", "title": "", "text": "did here: the provoker was stabbed by his victim. Spitting on a person is the usual example given of a provoking act that amounts to battery. E.g., Alcorn v. Mitchell, 63 Ill. 553 (1872); Cohen v. Smith, 269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329, 331-33 (1995); Caudle v. Betts, 512 So.2d 389, 391-92 (La.1987); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, p. 41-42 (5th ed.1984); Restatement (Second) of Torts § 19 and comment a (1965). And so if you deliberately spit on a pregnant woman you are guilty of the crime of aggravated battery in Illinois, People v. Dorn, 378 Ill.App.3d 693, 318 Ill.Dec. 353, 883 N.E.2d 584, 588-89 (2008); People v. Johnson, 347 Ill.App.3d 442, 283 Ill.Dec. 88, 807 N.E.2d 693, 695-97 (2004); People v. Peck, 260 Ill.App.3d 812, 198 Ill.Dec. 760, 633 N.E.2d 222 (1994), even though spitting does not involve “physical force” or inflict bodily harm. Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir.2008). To fall under the second subsection of section 4131.2(a) of the guidelines, the crime must be similar to the offenses listed in that subsection' — similar, that is, to burglary of a dwelling, arson, extortion, any crime that involves the use of explosives, or any other crime that presents a serious risk of physical injury. Begay v. United States, - U.S. -, -, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 203-09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Merely careless (even though criminal and dangerous) conduct will not suffice, how-ever. Begay v. United States, supra, 128 S.Ct. at 1586-88; United States v. Woods, 576 F.3d 400, 409-13 (7th Cir.2009). That is not a problem in this case; the Illinois statute requires that the defendant’s “insulting or provoking” physical contact with the victim be intentional or, what amounts to the same thing, knowing. See, e.g., United States v. Holland, 831 F.2d 717, 722-23 (7th Cir.1987). But an “insulting or provoking” physical contact, though intentional, could be no more violent than spitting, and a" } ]

[ { "docid": "7567300", "title": "", "text": "S.Ct. 1550, 51 L.Ed.2d 774 (1977). “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973); United States v. Lambros, supra, 544 F.2d at 966. In the instant case, George was charged with attempted sexual assault on a child: a Class III felony. The trial judge informed him of all the direct consequences of his plea. The prosecutor explained the charges as well as the possible sentence and fine. The judge explained to George in detail that he would be waiving a number of constitutional rights; George stated that he understood the nature of the rights he was waiving. The court established a factual basis for the plea and determined that George entered the plea and waived his rights “freely, voluntarily, intelligently, knowingly, and with knowledge and understanding of the consequences.” The court then accepted the nolo contendere plea. The judge did not, however, inform George that under NEB.REV.STAT. § 29-2920 (Reissue 1979), he would be subjected to a mental health commitment proceeding after his release from the penitentiary. George argues that as a result of the commitment hearing, his incarceration for the crime to which he pled no contest could be extended beyond the sentence announced by the court. The question, then, is whether actual commitment to an institution is a direct consequence of the nolo contendere plea. Turning to the the test set out in Cuthrell, supra, the answer is affirmative if commitment to an institution would result definitely, immediately, and automatically from appellant’s plea. The district court found that such commitment would be a collateral consequence: Given the Lambros test and the above examples, I believe that the mandatory mental health commitment proceedings which the petitioner faces under § 29-2920 are collateral consequences of the plea. It is true that § 29-2920 requires the prosecuting county attorney" } ]

[ { "docid": "23479062", "title": "", "text": "United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)) (emphasis in original). Before a court may accept a defendant’s guilty plea, the defendant must be advised of the “range of allowable punishment” that will result from his plea. U.S. ex rel. Pebworth v. Conte, 489 F.2d 266, 268 (9th Cir.1974). This court, in harmony with other circuits, has held that although a defendant is entitled to be informed of the direct consequences of the plea, the court need not advise him of “all the possible collateral consequences.” United States v. King, 618 F.2d 550, 552 (9th Cir.1980); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977). Appellant argues that the sentence he is now serving is clearly a direct consequence of his plea, yet he was not advised that if initially accepted by the Youth Authority the possibility remained that he could be sentenced to state prison for 25 years to life. He insists that his plea of guilty was premised on the understanding that he would serve six years with the Youth Authority and be released at age 25. It was incumbent upon the court, he argues, to inform him that this belief was not necessarily an accurate prediction of his sentence. Appellant was advised of the maximum sentence he was facing for first-degree murder. He was further advised of the possibility under the plea agreement that he would be committed to the Youth Au thority. When sentence was imposed, the terms of the plea bargain were met, including commitment to the Youth Authority. The issue is whether appellant’s return to state court and resentencing to state prison were a direct consequence of his plea requiring prior advice thereof by the court. The distinction between a direct and collateral consequence of a plea “ ‘turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” George v. Black, 782 F.2d 108, 110 (8th Cir.1984) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct." }, { "docid": "23479071", "title": "", "text": "a danger to the community, he might have to remain with the Youth Authority longer. He was never warned that, even though he had been accepted by the Youth Authority, he could still be resentenced to state prison. Yet he is now in state prison serving a sentence of 25 years to life. Under this set of facts, I cannot agree that Torrey was properly informed of his “range of allowable punishment.” United States ex rel. Pebworth v. Conte, 489 F.2d 266, 268 (9th Cir.1974). The sentence Torrey is now serving was a direct result of his plea. It is true that the line between direct consequences, of which the defendant must be warned, and collateral consequences, of which he need not be warned, is not easily drawn. But Torrey was sentenced anew by the original sentencing court for the crime to which he pleaded guilty. His situation is different from that of a parole violator, who is determined by the independent parole commission to have violated a condition of his parole and is returned to prison to finish his original sentence. While Torrey did misbehave while in custody of the Youth Authority, his resentencing is not truly based on that misbehavior, but on his original plea. We are not controlled by the view of the Eighth Circuit that direct consequences must be “largely automatic.” George v. Black, 732 F.2d 108, 110 (8th Cir.1984) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)). In any event, the Eighth Circuit cases dealt with independent civil commitment proceedings, which were much less directly connected to a guilty plea than Torrey’s prison sentence. In the end, the question is whether the consequence is so closely related to the plea that fairness requires that the defendant be warned. In my view Torrey’s prison sentence meets that test. I would grant the writ and permit him to withdraw his plea." }, { "docid": "13930592", "title": "", "text": "No authority is cited to support him. It is true that the present sentence he is serving on a narcotics charge was enhanced because of this 1955 narcotics conviction on his plea of guilty, but we know of no ruling in this or any other Circuit that he should have been advised of this possibility before entering the original plea. We agree with the holding in Fee v. United States, 207 F.Supp. 674, 676 (W.D.Va.1962): To the best of my knowledge it has never been suggested that the court . is under any duty to warn of such a possible result. [They] have a right to assume that the defendant will not be guilty of a subsequent offense. In Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir. 1973), the court states and holds: The law is clear that a valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” ... By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty, * * * .” . The distinction between “direct” and “collateral” consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment. [Citations omitted.] The trial court stated that it was not taking the subsequent charge into consideration in imposing sentence. We agree that the possibility of enhanced punishment in a subsequent narcotics act violation is a collateral and not a direct consequence of the guilty plea, and hence that the court in the Rule 11 proceedings is not obligated to explain the collateral consequence. In support of its exercise of discretion in denying the motion to withdraw the guilty plea, the court stated: Defendant admits that an established ground for refusing to" }, { "docid": "23446021", "title": "", "text": "of Rule 11(c). See, e.g., United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989); United States v. King, 618 F.2d 550, 552 (9th Cir.1980). The due process requirement of a voluntary guilty plea demands as much. See Wills, 881 F.2d at 825; see also Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988) (“A plea of guilty is voluntary only if it is entered by one fully aware of the direct consequences of his plea.”) (quotation and citation omitted). On the other hand, district courts need not advise defendants of the collateral consequences of their guilty plea. See id. This court has described direct consequences as consequences that have “a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. at 236 (quotation and citation omitted). Collateral consequences, on the other hand, have included the possibility of a felony prosecution for reentry following deportation, United States v. Chavez-Huerto, 972 F.2d 1087 (9th Cir.1992) (non-Rule 11 case discussing, by analogy to Rule 11 case law, what Immigration Judge must tell alien during deportation proceedings); imposition of a consecutive rather than concurrent sentence where the district court has discretion to choose between the two, Wills, 881 F.2d 823; the possibility of being resentenced to a maximum term if a state agency determines that the defendant is not amenable to treatment, Torrey, 842 F.2d 234; exposure to potential civil tax litigation, King, 618 F.2d 550; revocation of parole from a separate conviction where such revocation is within the power of a parole board, Sanchez v. United States, 572 F.2d 210 (9th Cir.1977); and the potential of deportation, where a separate agency has authority over such deportation, Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.1976) (case arising under the pre-1974 Amendment Rule 11(c)). Thus, where the consequence is contingent upon action taken by an individual or individuals other then the sentencing courtr — such as another governmental agency or the defendant himself — the consequence is generally “collateral.” See Kikuyama, 109 F.3d at 537; Torrey, 842 F.2d at 236. The direct/collateral analysis in Little-john’s ease must focus on two" }, { "docid": "3068591", "title": "", "text": "supervised release, and its plain language permitted imposition of a prison sentence of up to 2 years for his second revocation, without the need to consider or aggregate the prison term for his first revocation. Accordingly, the district court did not err by imposing an 18 month prison term on the second revocation of his supervised release. Lewis also argues that prior to entering his guilty plea, he was notified only that a violation of the conditions of supervised release conditions could result in revocation and imprisonment for up to 2 years. He claims that the district court violated Fed.R.Crim.P. 11 by failing to notify him that he could be sentenced to additional supervised release terms or that violations of the conditions of any subsequent term could result in imprisonment. We conclude that the notice given by the district court was sufficient because his subsequent revocation sentences were collateral consequences of his original sentence rather than predictable eventualities about which the court was required to caution him. See George v. Black, 732 F.2d 108, 110 (8th Cir.1984) (defendant need only be informed of direct consequences of guilty plea, described as having a “ ‘definite, immediate and largely automatic effect on the range of the defendant’s punishment’ ”), quoting Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.1973). Any error by the district court would be harmless in any event, for Lewis does not argue that he would not have pled guilty had he been notified of these collateral consequences and confirmed at oral argument that he has not sought to withdraw his guilty plea. See United States v. Prado, 204 F.3d 843, 846 (8th Cir.2000). For these reasons we affirm the judgment of the district court. . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. . Lewis did apply for postconviction relief pursuant to 28 U.S.C. § 2255, but his motion was denied and he did not appeal." }, { "docid": "7811381", "title": "", "text": "to be advised at the time of his guilty plea that his culpable activity could be used against him to support a subsequent RICO prosecution. In Torrey v. Estelle, the Ninth Circuit noted: The distinction between a direct and collateral consequence of a plea “ ‘turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” George v. Black, 732 F.2d 108, 110 (8th Cir.1984) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)). 842 F.2d at 236. Applying this standard, civil forfeiture is not a direct consequence of a guilty plea because it does not represent “a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. Parker’s criminal conviction was neither a necessary nor a sufficient condition precedent to forfeiture of the currency. Parker’s guilty plea did not cause the currency to be forfeited. Under the relation-back doctrine, the forfeiture occurs when the crime is committed and therefore, Parker had no property interest in the money as of that moment. Indeed, even if Parker had never been charged with a crime or had been acquitted of all criminal wrongdoing, the government would have remained free to pursue forfeiture. “That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled.” Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938); see also One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984). The reason that an acquittal does not bar a forfeiture action is twofold. First, forfeiture is a civil, remedial measure brought against the offending property rather than a criminal penalty against the person acquitted. United States" }, { "docid": "23092041", "title": "", "text": "from the judge as to maximum punishment on each count in the indictment. The Assistant stated the maximum prison term and added that, if imprisonment were imposed, “that imprisonment is followed by a minimum of a three-year special parole.” 483 F.2d at 520. In short, no inquiry was made of the defendant by the court, in contrast with the present case, as to whether or not he understood that the court had to impose a minimum special parole term of three years. . The present Rule 11 provides, in part, that a judge shall not accept a plea of guilty “without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.\" The italicized words were added by the 1966 amendment. . Failure to inform the defendant of the following results of his guilty plea has been held not to render that plea invalid: Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973) (institution of separate civil proceedings against defendant for commitment to a mental health facility) ; Hutchison v. United States, 450 F.2d 930, 931 (10th Cir. 1971) (per curiam) (loss of good time credit) ; United States v. Vermeulen, 436 F.2d 72, 75 (2d Cir. 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1390, 28 L.Ed.2d 653 (1971) (possibility of imposition of consecutive sentences) ; Meaton v. United States, 328 F.2d 379 (5th Cir. 1964) (per curiam), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965) (deprivation of rights to vote and to travel abroad) ; United States v. Cariola, 323 F.2d 180 (3d Cir. 1963) (deprivation of the right to vote in some jurisdictions) ; Redwine v. Zuchert, 115 U.S.App.D.C. 130, 317 F.2d 336 (1963) (per curiam) (possibility of undesirable discharge from armed forces). . See ABA Minimum Standards for Criminal Justice, Pleas of Guilty § 2.1 (1968). . While four judges dissented from the denial of the motion to en lane in Sambro," }, { "docid": "7824366", "title": "", "text": "a sex offender at his plea hearing that he would be subject to mental health commitment proceedings after completing his sentence did not render his plea involuntary. Because commitment was not a certainty, and instead left to the discretion of another agency, we held that the commitment proceedings were a collateral consequence of the defendant’s plea. The failure to warn the defendant of this procedure, therefore, did not violate due process. See id. Similarly, in this case, petitioner’s parole eligibility will be reviewed by a psychiatric panel. Although petitioner must comply with the review process, whether the panel will ultimately decide to grant or deny parole is unknown; it is left to the discretion of the psychiatric panel. See Nev.Rev.Stat. § 200.375 (repealed). Thus, as in Torrey, the proceedings are a collateral consequence of petitioner’s plea and the trial court’s failure to warn petitioner of these proceedings did not violate his due process rights. IV. For the aforementioned reasons, the decision of the district court is AFFIRMED in its entirety. . Nev.Rev.Stat. § 177.375 (1970) was amended in 1973 and repealed in 1993. The statute sets forth the general rules for procedural default which Nevada case law has interpreted and applied in several situations where a petitioner fails to raise a claim in his first habeas petition and later raises it in subsequent petitions. See, e.g., Johnson, 515 P.2d at 64 (failure to raise in first petition); Junior, 532 P.2d at 1037 (failure to exhaust direct appeals). . Moreover, to the extent that the dissent suggests in footnote 2 that Nevada law regarding a petitioner’s ability, on direct appeal, to challenge the validity of a guilty plea is relevant, we disagree. The dissent’s apparent reliance on Krewson v. Warden, 96 Nev. 886, 620 P.2d 859 (1980), and Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986), is misplaced. The Nevada Supreme Court, in Bryant, 721 P.2d at 367-68, held that a petitioner can no longer challenge the validity of a guilty plea on direct appeal because it would waste judicial resources. The Bryant court concluded that the state district" }, { "docid": "23479069", "title": "", "text": "appellant would have entered his plea even if he was aware of the potential state prison sentence, and he has failed to show that but for counsel’s failure to advise him of this possible collateral consequence he would not have entered a plea of guilty. The judgment of the district court is AFFIRMED. . During the plea proceedings, the following colloquy occurred: THE COURT: Now, you also could be sent to the California Youth Authority, Mr. Torrey, in which event they could retain you there up until the age of twenty-five. Do you understand that? THE DEFENDANT: Yes, I do. THE COURT: And there are also provisions of law that if they felt you were still dangerous to the health and safety of the community that they could petition the court and ask that you remain there for a further period of time. Do you understand that? THE DEFENDANT: Yes. . The fact that he was brought before the same court for resentencing does not alter this result. It is the administrative body which is vested with the authority to determine whether an offender will be returned, a decision in which the sentencing court does not participate. . At the time of sentencing, appellant was advised as follows: THE COURT: Probation is denied. The defendant is ordered sentenced to California Youth Authority pursuant to Section 1731.5 Welfare and Institutions Code. Of course, counsel, if the defendant is not accepted by the California Youth Authority then he would face State Prison. MR. WILLIAMS: Yes, your Honor. THE COURT: He’s aware of that? MR. WILLIAMS: Yes. CANBY, Circuit Judge, dissenting. I dissent because I believe that Torrey’s plea was uninformed and therefore involuntary. Torrey was advised that he could be sentenced to state prison if he was not accepted by the Youth Authority. At the time of his plea, however, Torrey knew that he had been accepted by the Youth Authority. He was told that if he was sent to the Youth Authority, he would remain there until he was 25 years old and that, if he was then considered to be" }, { "docid": "9505044", "title": "", "text": "sentenced him to consecutive terms of life imprisonment on the kidnapping charge and not less than 30 years or more than 50 years imprisonment on the armed robbery charge. Bryant now contends that his guilty plea was involuntary and unintelligent solely because the trial court failed to advise him, as required by N.C.Gen.Stat. § ISA-1022, that there is a seven-year mandatory minimum sentence for armed robbery. It is well established that a guilty plea is not considered voluntary and intelligent unless it is “ ‘entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel ....’” Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957) (Tuttle, J., dissenting); see Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1365 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). We have broadly defined “direct consequences” as those having a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. at 1366. We have refused, however, to apply this definition in a technical, ritualistic manner. In Bell v. North Carolina, 576 F.2d 564 (4th Cir.), cert. denied, 439 U.S. 956, 99 S.Ct. 356, 58 L.Ed.2d 348 (1978), for example, we held that the defendant’s plea was voluntary even though he had not been informed that he would have to serve 20 years of a life sentence before becoming eligible for parole. Although parole ineligibility for 20 years arguably had an “automatic effect on the defendant’s range of punishment,” we reasoned that the defendant’s ineligibility for parole was not a direct consequence of his guilty plea because he could not reasonably have expected to receive more favorable parole eligibility. Id. at 566 (citing Bell v. United States, 521 F.2d 713, 715 (4th Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976)). Other circuits have applied the same rationale to cases in which the trial court" }, { "docid": "23479070", "title": "", "text": "vested with the authority to determine whether an offender will be returned, a decision in which the sentencing court does not participate. . At the time of sentencing, appellant was advised as follows: THE COURT: Probation is denied. The defendant is ordered sentenced to California Youth Authority pursuant to Section 1731.5 Welfare and Institutions Code. Of course, counsel, if the defendant is not accepted by the California Youth Authority then he would face State Prison. MR. WILLIAMS: Yes, your Honor. THE COURT: He’s aware of that? MR. WILLIAMS: Yes. CANBY, Circuit Judge, dissenting. I dissent because I believe that Torrey’s plea was uninformed and therefore involuntary. Torrey was advised that he could be sentenced to state prison if he was not accepted by the Youth Authority. At the time of his plea, however, Torrey knew that he had been accepted by the Youth Authority. He was told that if he was sent to the Youth Authority, he would remain there until he was 25 years old and that, if he was then considered to be a danger to the community, he might have to remain with the Youth Authority longer. He was never warned that, even though he had been accepted by the Youth Authority, he could still be resentenced to state prison. Yet he is now in state prison serving a sentence of 25 years to life. Under this set of facts, I cannot agree that Torrey was properly informed of his “range of allowable punishment.” United States ex rel. Pebworth v. Conte, 489 F.2d 266, 268 (9th Cir.1974). The sentence Torrey is now serving was a direct result of his plea. It is true that the line between direct consequences, of which the defendant must be warned, and collateral consequences, of which he need not be warned, is not easily drawn. But Torrey was sentenced anew by the original sentencing court for the crime to which he pleaded guilty. His situation is different from that of a parole violator, who is determined by the independent parole commission to have violated a condition of his parole and is returned" }, { "docid": "6138231", "title": "", "text": "ALBERT V. BRYAN, Senior Circuit Judge: William David Bell, Jr., a North Carolina prisoner, seeks Federal habeas relief under 28 U.S.C. §§ 1291, 2253. In this appeal from the District Court’s dismissal of his petition, he contends that his guilty pleas to two counts of second degree murder were involuntary. Specifically, he urges that his guilty pleas were vitiated by the failure of the State Court and his attorneys to advise him that, as a recipient of a life sentence, he would not be eligible for parole for twenty years. We find his contentions without merit and affirm. Of course, a plea of guilty must not be accepted unless made voluntarily after proper advice and with the defendant’s full understanding of the consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, the consequences which must be understood are only those which flow from the plea. Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1365-1366 (4 Cir.), cert. denied 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). Potential parole eligibility, absent special limitations, is not a direct incident to a guilty plea, and need not be previously communicated to a defendant. As explained by the Ninth Circuit recently: “[M]any aspects of traditional parole need not be communicated to the defendant by the trial judge under the umbrella of Rule 11. For example, a defendant need not be advised of all conceivable consequences such as when he may be considered for parole or that, if he violates his parole, he will again be imprisoned. . . .” Bunker v. Wise, 550 F.2d 1155, 1158 (9 Cir. 1977) [footnote omitted]. However, appellant argues that the North Carolina statutory scheme denies parole availability to him and thus qualifies as a direct result of his guilty plea. We cannot agree. If the parole ineligibility were for defendant’s entire term, then, any guilty plea would have to reflect that understanding. Paige v. United States, 443 F.2d 781 (4 Cir. 1971); Berry v. United States, 412 F.2d 189, 192-193 (3 Cir. 1969). But, North Carolina provides parole eligibility •for" }, { "docid": "7811380", "title": "", "text": "an undesirable military discharge, Redwine v. Zuckert, 317 F.2d 336, 338 (D.C.Cir.1963); and the potential for civil commitment proceedings, George v. Black, 732 F.2d 108, 111 (8th Cir.1984). The Court of Appeals for the Ninth Circuit has held that a court need not inform a defendant that his guilty plea would probably have the collateral consequence of es-topping him from denying that his tax return was false and fraudulent in subsequent civil litigation. United States v. King, 618 F.2d 550, 552 (9th Cir.1980). The court noted that civil tax liability does not follow directly from a guilty plea to a charge of filing a false and fraudulent tax return. Rather, like deportation proceedings, the government must first bring a separate action. So, too, the government must prove the existence and amount of a tax deficiency before a defendant can be found civilly liable. This court, in United States v. Persico, 774 F.2d 30, 33 (2d Cir.1985), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988), held that a defendant is not entitled to be advised at the time of his guilty plea that his culpable activity could be used against him to support a subsequent RICO prosecution. In Torrey v. Estelle, the Ninth Circuit noted: The distinction between a direct and collateral consequence of a plea “ ‘turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” George v. Black, 732 F.2d 108, 110 (8th Cir.1984) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)). 842 F.2d at 236. Applying this standard, civil forfeiture is not a direct consequence of a guilty plea because it does not represent “a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. Parker’s criminal conviction was neither a necessary nor a sufficient condition precedent to forfeiture of the currency. Parker’s guilty plea did not cause the currency to be forfeited. Under the relation-back doctrine, the forfeiture occurs when the crime" }, { "docid": "23103645", "title": "", "text": "consequences of the (guilty) plea”. It is conceded that Fruchtman, by virtue of his alien status, was rendered subject to deportation proceedings as a result of his conviction, presumably under subsection (a)(ll) of 8 U.S.C. § 1251. Deportation being a drastic measure, Fruchtman argues that Rule 11 required that the court advise him of such a consequence before accepting his plea. It is clear, of course, from the text itself, that Rule 11 requires a District Court determination that the consequences of a plea of guilty are understood by one who enters such a plea. It is equally clear that administration of the rule requires the development of some limiting guide to define the nature of the consequences of which a defendant must be advised so that the requirements of the rule shall have been met. The common distinction drawn is the distinction between consequences characterized as “direct” and those characterized as “collateral”. Under this approach, Rule 11 requires the District Court only to advise a defendant of the direct consequences of a plea of guilty. The accused need not be advised of those consequences that can ap propriately be denominated “collateral”. Thus, some direct consequences of which a defendant must be informed under Rule 11 include the maximum allowable sentence (Combs v. United States, 391 F.2d 1017 (9th Cir. 1968)), recidivist provisions (Berry v. United States, 412 F.2d 189 (3rd Cir. 1969)), and loss of state probation or parole (United States v. Myers, 451 F.2d 402 (9th Cir. 1972)). It has been held that some collateral consequences of which the defendant need not be informed under Rule 11 include civil proceedings leading to commitment (Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)), loss of good time credit (Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971)), loss of right to vote and travel abroad (Meaton v. United States, 328 F.2d 379 (5th Cir. 1964), cert. denied, 380 U.S. 916, 85 S.Ct. 902,13 L.Ed.2d 801 (1965)), and the possibility of undesirable discharge from the armed" }, { "docid": "7824365", "title": "", "text": "a state psychiatric panel prior to his release on parole. Petitioner maintains that due process required the district court to inform him of this procedure prior to his plea; because the court failed to do so, petitioner argues that his plea was not knowing and voluntary. Again, we disagree. A trial court is not required to inform a defendant of all of the consequences of his plea; instead this Court only will find a due process violation where the trial court failed to inform a defendant of the direct consequences of his plea, as opposed to the collateral consequences. See United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989). We hold that the statutory requirement that petitioner appear before a psychiatric panel for evaluation prior to parole is a collateral consequence of his plea. Consequently, the trial court did not violate petitioner’s due process rights by failing to inform him of this procedure. In Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988), this Court held that the failure of a court to inform a sex offender at his plea hearing that he would be subject to mental health commitment proceedings after completing his sentence did not render his plea involuntary. Because commitment was not a certainty, and instead left to the discretion of another agency, we held that the commitment proceedings were a collateral consequence of the defendant’s plea. The failure to warn the defendant of this procedure, therefore, did not violate due process. See id. Similarly, in this case, petitioner’s parole eligibility will be reviewed by a psychiatric panel. Although petitioner must comply with the review process, whether the panel will ultimately decide to grant or deny parole is unknown; it is left to the discretion of the psychiatric panel. See Nev.Rev.Stat. § 200.375 (repealed). Thus, as in Torrey, the proceedings are a collateral consequence of petitioner’s plea and the trial court’s failure to warn petitioner of these proceedings did not violate his due process rights. IV. For the aforementioned reasons, the decision of the district court is AFFIRMED in its entirety. . Nev.Rev.Stat. § 177.375 (1970)" }, { "docid": "3641929", "title": "", "text": "court advised him the maximum sentence that could be imposed was 15 years, but it did, not mention the special parole term. It then sentenced him to six years’ imprisonment. Two months later, the court re-sentenced Bell, amending the judgment to include a special parole term of three years. Bell then filed a motion to vacate his sentence on the ground that the court had failed to advise him fully of the consequence of his plea. The district court denied the motion, reasoning that knowledge of the special parole term was legally irrelevant because the sum of Bell’s six-year term and three-year special parole term was less than the court’s explanation of the maximum sentence. The mandatory special parole term imposed by the 1970 Act is unique. It is in addition to any other parole, remaining in effect after the original prison sentence has been served and the period of regular parole has expired. Also, if the special parole is revoked, the original term of imprisonment is increased by the period of the special parole. Since the statute prescribes no maximum special parole term, the additional prison sentence may be lengthy. Rule 11 of the Federal Rules of Criminal Procedure prohibits a trial court from accepting a plea of guilty without first determining that the defendant understands the consequences of his plea. Exercising its supervisory power, the Supreme Court has prescribed that compliance with the rule must appear on the record at the time the plea is entered. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Thus, to meet the dictates of both the rule and McCarthy, the record must show that the defendant was informed of those consequences of his plea that will have “a definite, immediate and largely automatic effect on the range of [his] punishment.” Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir. 1973). Impressed by the unusual characteristics of the special parole term, two courts of appeals have held that it is a “consequence” of a plea within the meaning of Rule 11 that must be explained" }, { "docid": "7811379", "title": "", "text": "256, 50 L.Ed.2d 178 (1976). Similarly, whether a federal sentence runs concurrently or consecutively to a state sentence is not a direct consequence of a guilty plea and therefore need not be explained to a defendant for a plea to be constitutionally valid. United States v. Ray, 828 F.2d 399, 418 (7th Cir.1987), cert. denied, 485 U.S. 964, 108 S.Ct. 1233, 99 L.Ed.2d 432 (1988); United States v. Degand, 614 F.2d 176, 177 (8th Cir.1980). Moreover, because a federal court has no control over any enhancement of a defendant’s sentence by a state court, the court is not required to inform the defendant of such a possibility prior to accepting a plea of guilty. Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir.1988); United States v. Garrett, 680 F.2d 64, 66 (9th Cir.1982). Other collateral consequences include parole eligibility or revocation, see, e.g., Holmes v. United States, 876 F.2d 1545, 1549 (11th Cir.1989); Brown v. Perini, 718 F.2d 784, 788 (6th Cir.1983); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977); the likelihood of an undesirable military discharge, Redwine v. Zuckert, 317 F.2d 336, 338 (D.C.Cir.1963); and the potential for civil commitment proceedings, George v. Black, 732 F.2d 108, 111 (8th Cir.1984). The Court of Appeals for the Ninth Circuit has held that a court need not inform a defendant that his guilty plea would probably have the collateral consequence of es-topping him from denying that his tax return was false and fraudulent in subsequent civil litigation. United States v. King, 618 F.2d 550, 552 (9th Cir.1980). The court noted that civil tax liability does not follow directly from a guilty plea to a charge of filing a false and fraudulent tax return. Rather, like deportation proceedings, the government must first bring a separate action. So, too, the government must prove the existence and amount of a tax deficiency before a defendant can be found civilly liable. This court, in United States v. Persico, 774 F.2d 30, 33 (2d Cir.1985), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988), held that a defendant is not entitled" }, { "docid": "23479063", "title": "", "text": "years with the Youth Authority and be released at age 25. It was incumbent upon the court, he argues, to inform him that this belief was not necessarily an accurate prediction of his sentence. Appellant was advised of the maximum sentence he was facing for first-degree murder. He was further advised of the possibility under the plea agreement that he would be committed to the Youth Au thority. When sentence was imposed, the terms of the plea bargain were met, including commitment to the Youth Authority. The issue is whether appellant’s return to state court and resentencing to state prison were a direct consequence of his plea requiring prior advice thereof by the court. The distinction between a direct and collateral consequence of a plea “ ‘turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” George v. Black, 782 F.2d 108, 110 (8th Cir.1984) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)). Under this standard, direct consequences include a mandatory special parole term, United States v. Harris, 534 F.2d 141 (9th Cir.1976); ineligibility for parole, Munich v. United States, 337 F.2d 356, 361 (9th Cir.1964); and the maximum punishment provided by law, Pebworth, 489 F.2d at 267. In contrast, collateral consequences include the possibility that sentences may run consecutively, United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, — U.S. —, 108 S.Ct. 107, 98 L.Ed.2d 66 (1987); the possibility of revocation of parole, Sanchez, 572 F.2d at 211; potential deportation, Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 158 (1976); civil tax liability, King, 618 F.2d at 553; the likelihood of an undesirable military discharge, Redwine v. Zuckert, 317 F.2d 336 (D.C.Cir.1963); and the potential for civil commitment proceedings, George v. Black, 732 F.2d at 111. In many cases, the determination that a particular consequence is “collateral” has rested on the fact that it was in the" }, { "docid": "9505043", "title": "", "text": "counts of assault with intent to kill in violation of N.C.Gen. Stat. § 14-32, and one count of armed robbery in violation of N.C.Gen.Stat. § 14-87. The charges carried a total possible penalty of two life sentences plus fifty-five years. During the trial, Bryant entered into a plea agreement whereby the State agreed to drop three charges if Bryant would plead guilty to one count of kidnapping and one count of armed robbery, each of which carried a possible life sentence. It was understood, as part of the bargain, that the State would recommend that Bryant receive the maximum penalty of two consecutive life sentences. Before accepting Bryant’s plea of guilty, the trial court questioned him to determine whether he was satisfied with his counsel, whether there was a factual basis for the plea, and whether the plea was given knowingly and voluntarily. Bryant acknowledged the plea agreement and indicated that he understood that the State would recommend two consecutive life sentences upon entry of his guilty plea. After accepting Bryant’s guilty plea, the court sentenced him to consecutive terms of life imprisonment on the kidnapping charge and not less than 30 years or more than 50 years imprisonment on the armed robbery charge. Bryant now contends that his guilty plea was involuntary and unintelligent solely because the trial court failed to advise him, as required by N.C.Gen.Stat. § ISA-1022, that there is a seven-year mandatory minimum sentence for armed robbery. It is well established that a guilty plea is not considered voluntary and intelligent unless it is “ ‘entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel ....’” Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957) (Tuttle, J., dissenting); see Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1365 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). We have broadly defined “direct consequences” as those" }, { "docid": "3641930", "title": "", "text": "Since the statute prescribes no maximum special parole term, the additional prison sentence may be lengthy. Rule 11 of the Federal Rules of Criminal Procedure prohibits a trial court from accepting a plea of guilty without first determining that the defendant understands the consequences of his plea. Exercising its supervisory power, the Supreme Court has prescribed that compliance with the rule must appear on the record at the time the plea is entered. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Thus, to meet the dictates of both the rule and McCarthy, the record must show that the defendant was informed of those consequences of his plea that will have “a definite, immediate and largely automatic effect on the range of [his] punishment.” Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir. 1973). Impressed by the unusual characteristics of the special parole term, two courts of appeals have held that it is a “consequence” of a plea within the meaning of Rule 11 that must be explained at arraignment to validate a plea of guilty. See Roberts v. United States, 491 F.2d 1236 (3rd Cir. 1974); United States v. Richardson, 483 F.2d 516 (8th Cir. 1973). We decline, however, to follow the per se rule of Roberts and Richardson. We fully agree with the reasoning of these cases when the prisoner’s sentence and the special parole term exceed the maximum sentence he was told he could receive. Permission to withdraw the plea is then imperative. Cf. Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963). But when, as here, the combination is less than the maximum of which the prisoner had been advised, we perceive no warrant to conclude that he was misled. Under these circumstances, rearraignment is not necessary to either of the dual purposes of Rule 11: to insure voluntariness, or to create and preserve an adequate record of waiver. Cf. Crawford v. United States, 519 F.2d 347 (4th Cir. 1975). Bell relies heavily on Paige v. United States, 443 F.2d 781 (4th Cir. 1971), in which we held" } ]

[ { "docid": "5740630", "title": "", "text": "shall be considered to impair an exemption to the extent that the sum of— (i) the lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. 11 U.S.C. § 522(f)(2)(A). In this case, it is undisputed that the sum of the targeted judicial lien ($209,500), all other liens ($117,680) and the amount of the debtor’s exemption ($15,000) exceeds the (stipulated) value of the debtor’s property ($157,000), by $185,180. Thus, the Bank’s judicial hen clearly does “impair” an exemption of the debtor within the meaning of § 522(f)(2)(A). The question here concerns the extent of the debtor’s power under § 522(f)(1) to alleviate this “impairment.” The district court concluded that once a debtor’s power of avoidance is triggered by the fact of an impairment of whatever size, that power permits the debtor to avoid the judicial hen causing the impairment in its entirety. The court thus held that Silveira was entitled to avoid the entire amount of the Bank’s $209,500 lien. The Bank now argues that the district court misapplied § 522(f)(1)(A), and that Silveira is in fact entitled to avoid only so much of the Bank’s hen as necessary to prevent impairment of the debtor’s exemption within the meaning of § 522(f)(2)(A). We agree. As an initial matter, we find unpersuasive Silveira’s argument that the “plain language” of the statute supports the district court’s, view. On the contrary, the language of the relevant provisions seems to us to support the Bank’s position. Section 522(f)(1) permits a debtor to “avoid the fixing of a hen on an interest of the debtor in property to the extent that such hen impairs an exemption [of the debtor].” 11 U.S.C. § 522(f)(1) (emphasis added). Section 522(f)(2)(A), similarly, provides that a judicial lien “impair[s] an exemption to the extent that” the targeted hen, in combination with other hens and the value of the debtor’s exemption, exceeds the value of" } ]

[ { "docid": "19382118", "title": "", "text": "to $33,000. The bankruptcy court noted that prior to the Bankruptcy Reform Act of 1994 and the amendment to § 522, the court would be allowed to avoid part of a lien and let part of a hen survive. (Citing In re Chabot, 992 F.2d 891 (9th Cir.1993)). Since Congress intended for the amendment to overrule Char bot, the court concluded that the full value of the Bank’s hen was avoidable if it impaired the exemption at all. The court also determined that the third priority hen of Wells Fargo was avoidable in its entirety. Separate orders avoiding each hen were entered on March 19,1997. The Bank timely appealed. ISSUE Whether the resulting calculation under § 522(f)(2) to determine the “extent that [the Bank’s] hen impair[ed] an exemption” required the avoidance of the bank’s hen in its entirety. STANDARD OF REVIEW This appeal raises questions of statutory interpretation which are reviewed de novo. In re Higgins, 201 B.R. 965, 966 (9th Cir. BAP 1996). DISCUSSION Section 522(f)(1) provides that a debtor may avoid the fixing of judicial hen “on an interest of the debtor in property to the extent that such hen impairs an exemption to which the debtor would have been entitled under subsection (b) of this section.” Section 522(f)(2) provides a means to calculate how a hen impairs the exemption, as follows: (2)(A) For the purposes of this subsection, a hen shall be considered to impair an exemption to the extent that the sum of— (i) the hen, (ii) ah other hens on the property; and (Hi) the amount of the exemption that the debtor could claim if there were no hens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any hens. 11 U.S.C. § 522 (1994) (emphasis added). The debtor’s avoiding power is limited “in that it may be employed ‘only to the extent that the hen impairs the debtor’s exemption.’ ” 4 Collier on Bankruptcy § 522.11[1] at 522-74 (15th ed.1997). Section 522(f)(1) was not intended to free the debt- or’s property of judicial hens" }, { "docid": "19382123", "title": "", "text": "lien of $33,183 ($92,565 - $59,382). We will show how this result would be the same under the full avoidance formula of Brantz, 106 B.R. at 68, which was as follows: 1. Determine the value of the property on which a judicial lien is sought to be avoided. $270,000 2. Deduct the amount of all liens not to be avoided (all non-§ 522 liens) from (1). $270,000 - $158,000 = $112,000. 3. Deduct the allowable exemption. $112,000 - $75,000 = $37,000. 4. Avoidance of all judicial liens results unless (3) is a positive figure. N/A. 5. If (3) does result in a positive figure, does not allow avoidance of liens, in order of priority, to that extent only. $37,000 minus $3,817 lien of Pacific Alternator yields $33,183. The Bank’s lien cannot be avoided up to $33,183. The amount that can be avoided is $59,-382($92,565 minus $33,183). In a recent case, the Bankruptcy Appellate Panel (“BAP”) affirmed the bankruptcy court’s avoidance of a lien in its entirety. See Higgins, supra. The BAP held that where the sum of all the liens and the hypothetical value of the exemption without liens exceeded the value of the debtor’s interest in the property in the absence of hens, the debtors were entitled to avoid the hen. Higgins, 201 B.R. at 967-68. There, the sum was $120,181, which exceeded the value of the debtors’ interest, which was $103,000, by $17,181. Since $17,181 was the amount of the impairment, hens up to that amount could be avoided. Id. The only judicial hen of $2,097.16 was less than the impairment amount, and was properly avoided in its entirety. See also In re Jakubowski, 198 B.R. 262, 264 (Bankr.N.D.Ohio 1996) (avoiding hen in its entirety where the amount of impairment under § 522(f) was greater than the amount of the hen sought to be avoided in full). Another recent BAP case has suggested in dicta that the Bankruptcy Reform Act allows the avoidance of the unsecured portion of a lien to the extent that the lien exceeds the value of the surplus equity. In re Nielsen, 197 B.R." }, { "docid": "15916816", "title": "", "text": "Task, 80 B.R. 304, 306 (Bankr.D.N.J.1987) (allowing Chapter 13 debtor to utilize § 522(f) to avoid a judicial hen that impaired exemption). The hen avoidance power contained in § 522(f) enables the debtor to extinguish or partially avoid the judicial lien of a creditor in property that would otherwise be exempt but for the creditor’s hen. Section 522(f) sets forth the formula to determine the extent to which a hen impairs an exemption: (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of- (i) the lien, (ii) all other liens on the property; and (in) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. 11 U.S.C. § 522(f)(2)(A). Utilizing this formula, a debtor is permitted to avoid only that portion of the lien that impairs the exemption. In the matter at hand, the Debtor claims that the fair market value of her home as of the petition date was $260,000. WAMCO does not dispute this amount, but claims that the value has likely increased since the petition was filed, and that the Court should value the West Orange property as of the confirmation date. The Court can find no support in the case law for WAM-CO’s position. Furthermore, it is in direct contradiction to § 522(a)(2) which provides, inter alia, that value means “... fair market value as of the date of filing of the petition.... ” Accordingly, for purposes of making the calculation under § 522(f)(2)(A) the Court will use the value of $260,000. The liens which must be considered are the first mortgage held by National City Mortgage in the amount of $200,103.65; a lien in favor of the IRS in the amount of $32,624.53; and the amended WAMCO claim in the amount of $225,221.51. The Debtor claimed an exemption in the homestead in the amount of $16,150.00 on Schedule C of her petition. The Calculation under the" }, { "docid": "17698823", "title": "", "text": "a result harmful to those individuals as well as the community at large.” Id. California law and the Bankruptcy Code ensure that the state exemptions are available to debtors in bankruptcy cases regardless of whether a non-money judgment sale occurs. Id. at 464-65. In addition, the California legislature “intended to grant bankruptcy debtors all of the exemptions afforded to judgment debtors, including the homestead exemption, in their entirety and without limitation.” In re Pladson, 35 F.3d 462, 465 (9th Cir.1994). Undeterred by such statutory construction and public policy, Katz contends that his lien should be accorded the same status as a consensual lien in the calculation of exemption impairment under federal law, and not be avoidable in bankruptcy. Section 522(f) provides, in part, that a debtor: [M]ay avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is (A) A judicial lien.... The Bankruptcy Reform Act of 1994 enacted a new subsection 522(f)(2)(A). That subsection sets forth a mathematical formula to determine whether a lien impairs an exemption. In re Wilson, 90 F.3d 347, 350 (9th Cir.1996). The amended section applies to bankruptcy cases filed after October 22, 1994, which includes the instant case. Id. Section 522(f)(2) provides a formula for calculating the extent to which a lien impairs an exemption: add the hen, all other liens on the property, and the “amount of the exemption that the debtor could claim if there were no liens on the property” and then subtract from that amount the value of the debtor’s interest in the property in the absence of any hens. In this case, the calculation would be as follows: Katz lien $ 48,224.23 Plus: Prior liens $411,227.88 Plus: Homestead exemption $ 75,000.00 $534,452.11 Less: Property value (470,000.00) $ 64,452.11 Since the exemption is impaired by the amount of $64,452.11, and the Katz hen is less than the $64,452.11 impairment amount, the hen is avoidable in its entirety. Hanger, 217 B.R." }, { "docid": "11710125", "title": "", "text": "of Citizens’ lien at the time of the bankruptcy petition ($62,739.79), the other liens on the property at the time of the bankruptcy petition ($194,857.91) and Garran’s homestead exemption ($300,000.00) is $557,597.70. This total is less than the value of the Garrans’ property at the time of the bankruptcy petition ($560,000.00). The Citizens’ hen therefore does not impair Garran’s homestead exemption because Garran can both satisfy the hens on the property and still retain the $300,000 homestead exemption to which he is entitled under Massachusetts law. Because the Citizens’ hen does not impair Garran’s exemption, it cannot be avoided under § 522(f). Affirmed. Appendix This table sets forth the differing calculations the parties propose under 11 U.S.C. § 522(f)(2)(A):_ _Garran’s Theory_Citizens’ Theory Citizens’ lien 62,739.79 62,739.79 (undisputed)__ Other hens (undisputed)_194.857.91_194.857.91_ Exemption_600,000.00_300.000.00_ Sum of 522(f)(2)(A)(l)- 857,597.70 557,597.70 _011)_ Value of property 560,000.00 560,000.00 (undisputed)__ Exemption impaired? Yes: sum of (i)-(iii) No: sum of (i)-(iii) exceeds value of does not exceed value property.of property. . A tenancy by the entirety is a \"joint tenancy that arises between husband and wife when a single instrument conveys realty to both of them but nothing is said in the deed or will about the character of their ownership.” Black’s Law Dictionary 1477 (7th ed.1999). . The judgment included the $55,000 value of the promissory notes plus interest. On April 2, 2001, the date Garran filed for bankruptcy, the value of Citizens’ lien on the property was $62,739.79. . Judith Garran is not a debtor in this case. . Whether Garran is entitled to a $600,000 or a $300,000 exemption will determine whether Citizens’ lien is avoided entirely or not at all. The table in the Appendix outlines the differing calculations the parties propose under § 522(f)(2)(A)." }, { "docid": "11710124", "title": "", "text": "1A, a debtor retains his homestead exemption even given a judgment against him based on fraud, mistake, duress, undue influence or lack of capacity, while under § 1 the debtor does not. Mass. Gen. Laws Ann. ch. 188, § 1 (West Supp.2003). Rejecting Garran’s proffered interpretation of the homestead statutes — by holding that disabled debtors do not have the right to “stack” their § 1A exemptions onto their § 1 exemptions' — does not eliminate the value of the § 1A enactment. IV. Having predicted that the Massachusetts Supreme Judicial Court would conclude that the plain language of the Massachusetts homestead statutes prohibits the stacking of the exemption available to disabled debtors on top of the exemption available to all other residents of Massachusetts, and that Garran is entitled only to a maximum of $300,000 provided by his non-debtor spouse’s declaration of homestead under § 1, we now must return to the formula laid out in 11 U.S.C. § 522(f)(2)(A) to determine whether Citizens’ hen impairs Garran’s homestead exemption of $300,000. The sum total of Citizens’ lien at the time of the bankruptcy petition ($62,739.79), the other liens on the property at the time of the bankruptcy petition ($194,857.91) and Garran’s homestead exemption ($300,000.00) is $557,597.70. This total is less than the value of the Garrans’ property at the time of the bankruptcy petition ($560,000.00). The Citizens’ hen therefore does not impair Garran’s homestead exemption because Garran can both satisfy the hens on the property and still retain the $300,000 homestead exemption to which he is entitled under Massachusetts law. Because the Citizens’ hen does not impair Garran’s exemption, it cannot be avoided under § 522(f). Affirmed. Appendix This table sets forth the differing calculations the parties propose under 11 U.S.C. § 522(f)(2)(A):_ _Garran’s Theory_Citizens’ Theory Citizens’ lien 62,739.79 62,739.79 (undisputed)__ Other hens (undisputed)_194.857.91_194.857.91_ Exemption_600,000.00_300.000.00_ Sum of 522(f)(2)(A)(l)- 857,597.70 557,597.70 _011)_ Value of property 560,000.00 560,000.00 (undisputed)__ Exemption impaired? Yes: sum of (i)-(iii) No: sum of (i)-(iii) exceeds value of does not exceed value property.of property. . A tenancy by the entirety is a \"joint tenancy that arises between" }, { "docid": "17417981", "title": "", "text": "in 1998, borrowing much of the purchase price and giving the World Savings Bank (“WSB”) a first mortgage on the home as security for its loan. In the fall of 2000, Antioch obtained a $134,000 judgment against the Kolichs and recorded the judgment as a judicial lien against their homestead. In December 2000, the Kolichs borrowed $80,000 from Norbank, giving Norbank a second mortgage on their homestead to secure its loan. Under state law, as between these secured creditors, WSB had the first priority interest in the homestead, Antioch’s judicial lien had the second priority interest, and Norbank’s junior lien had the third priority interest. When Antioch began proceedings to collect its judicial lien in the spring of 2001, the Kolichs commenced this Chapter 7 proceeding. At that time, the homestead’s fair market value was $275,000, the WSB loan had an outstanding balance of $219,000, and both Antioch’s judgment and the Norbank loan were unpaid. Missouri allows a homestead exemption of $8,000. See Mo.Rev.Stat. § 513.475(1). After filing their Chapter 7 petition, the Kolichs moved to avoid Antioch’s judicial lien under § 522(f)(1), arguing that the lien impairs their homestead exemption. That motion turns on the proper application of the formula defining an impairment set forth in § 522(f)(2)(A): (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of— (i) the [judicial] lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. Applying the formula to this case, if the term “all other liens” in subsection (2)(A)(ii) is construed literally, as the BAP concluded, then Antioch’s entire judicial hen must be avoided because the impairment exceeds the value of its lien. That is, the sum of the judicial hen ($134,- 000), the two mortgage liens ($299,000), and the homestead exemption ($8,000) is $441,000, which exceeds the Kolichs’ $275,000 interest in the" }, { "docid": "1574758", "title": "", "text": "Judicial Lien is fully avoidable under this statute. i. Section 522(f)(1) provides that “the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled [under N.C. GemStat. 1C-1601], if such lien is a judicial lien ...” 11 U.S.C. § 522(f)(1)(A). This wording historically caused significant debate among courts regarding whether a lien greater than available exemptions could be avoided, but in 1994 Congress clarified the meaning by adding a formula for computing impairment: For purposes of [11 U.S.C. § 522(f)], a lien shall be considered to impair an exemption to the extent that the sum of — - (i) the lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. 11 U.S.C. § 522(f)(2)(A). ii. “Under Congress’s formula, a judicial lien may be avoided notwithstanding the fact that the amount of the lien exceeds the dollar amount of the applicable exemption.” In re Hemric, 333 B.R. 81, 83 (Bankr. M.D.N.C.2005); see also In re McQueen, 196 B.R. 31, 33 (E.D.N.C. 1995) (interpreting the legislative history of the 1994 amendment to 11 U.S.C. § 522(f) to mean “that the statute was originally intended to provide a debtor the opportunity to avoid a judicial lien in a residence without regard to the debtor’s monetary interest in that residence”); In re Male, 362 B.R. 238, 242 (Bankr.E.D.N.C.2007) (finding that debtors can avoid a judicial hen even though no equity exists in their residence at the time of filing bankruptcy). iii. Applying established values as they existed on the Petition Date to the formula set forth in 11 U.S.C. § 522(f)(2)(A), the court computes impairment of the Debtors’ exemptions as follows: Chase Lien $ 153,873.30 BB&T Lien 6,798.08 Judicial Lien 248,296.55 Homestead Exemptions + 60.000.00 $ 468,967.93 Value of Property a56.000.00J Impairment $312.967.93 The total" }, { "docid": "17417982", "title": "", "text": "to avoid Antioch’s judicial lien under § 522(f)(1), arguing that the lien impairs their homestead exemption. That motion turns on the proper application of the formula defining an impairment set forth in § 522(f)(2)(A): (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of— (i) the [judicial] lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. Applying the formula to this case, if the term “all other liens” in subsection (2)(A)(ii) is construed literally, as the BAP concluded, then Antioch’s entire judicial hen must be avoided because the impairment exceeds the value of its lien. That is, the sum of the judicial hen ($134,- 000), the two mortgage liens ($299,000), and the homestead exemption ($8,000) is $441,000, which exceeds the Kolichs’ $275,000 interest in the property in the absence of any liens by $166,000, more than the total value of the judicial lien. On the other hand, the bankruptcy court concluded that Norbank’s hen should be excluded in applying the formula because it is junior to Antioch’s lien under state law. Excluding the Norbank lien reduces the impairment from $166,000 to $86,000, which means that only $86,000 of Antioch’s judicial lien is avoided, while the remaining $48,000 remains an unavoided hen on the Kolichs’ homestead. On appeal, Antioch urges us to adopt the bankruptcy court’s interpretation of § 522(f)(2)(A) rather than the BAP’s. As this is a statutory formula, we begin, as we must, with the language of the statute. Antioch concedes that the BAP’s ruling is consistent with a literal application of the statutory formula. We agree with Antioch’s reading of the statute’s plain meaning. But the concession leaves Antioch with a decidedly uphill battle. “The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a" }, { "docid": "19164799", "title": "", "text": "tax assessment value. There is a mortgage on the property in the amount of $23,559.55. Richardson has claimed a homestead exemption in the property in the amount of $5,000. Fidelity has objected to the plan on the basis that “Debtor has sufficient property over and above Debtor’s exemptions for the judgment lien of Fidelity to attach.” Fidelity alleges that its claim is improperly treated as a completely unsecured claim under the plan. Richardson argues that this Court should take into account the costs of sale when calculating debtor’s equity in the property and, therefore, there is nothing for Fidelity’s hen to attach to above the mortgage, homestead exemption, and the estimated cost of sale. Fidelity’s claim is unsecured. LAW The issue before the Court is whether the hypothetical costs of sale should be taken into account in determining the amount of debtor’s equity in her homestead property under § 522. Richardson argues that Fidelity’s lien impairs her homestead exemption and she should be able to avoid the lien under § 522(f). Section 522(f) gives some guidance on the issue. It states that a debtor “may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption ...” Then § 522(f)(2)(A) describes when a lien impairs an exemption. It states that the lien shall be considered to impair an exemption to the extent that the sum of— (i) the lien; (ii) all other hens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any hens. Can Richardson avoid the lien of Fidelity because the equity remaining after deducting her homestead exemption is not more than the estimated amount it would cost to sell the property? Section 522(f)(2)(A) is not clear on this point. A few courts have held that the value of the property is the amount that would be realized in a bankruptcy liquidation sale and thus, costs" }, { "docid": "17698824", "title": "", "text": "Act of 1994 enacted a new subsection 522(f)(2)(A). That subsection sets forth a mathematical formula to determine whether a lien impairs an exemption. In re Wilson, 90 F.3d 347, 350 (9th Cir.1996). The amended section applies to bankruptcy cases filed after October 22, 1994, which includes the instant case. Id. Section 522(f)(2) provides a formula for calculating the extent to which a lien impairs an exemption: add the hen, all other liens on the property, and the “amount of the exemption that the debtor could claim if there were no liens on the property” and then subtract from that amount the value of the debtor’s interest in the property in the absence of any hens. In this case, the calculation would be as follows: Katz lien $ 48,224.23 Plus: Prior liens $411,227.88 Plus: Homestead exemption $ 75,000.00 $534,452.11 Less: Property value (470,000.00) $ 64,452.11 Since the exemption is impaired by the amount of $64,452.11, and the Katz hen is less than the $64,452.11 impairment amount, the hen is avoidable in its entirety. Hanger, 217 B.R. at 595. Katz concedes that his hens impair Debtor’s exemption under the formula, but argues that Congress did not consider state law priority rights in enacting the formula. He proposes that a prerecorded judgment hen should be calculated by subtracting all consensual hens and hens prior to the declared homestead — -in this case totaling $411,227.88 — from the value of the property — $470,000 , which would leave $58,772.12 in surplus equity. His $48,-224.23 hen, therefore, could not be avoided. Katz relies on In re Amiri, 184 B.R. 60 (9th Cir. BAP 1995), an automatic homestead case, for the proposition that a debt- or may not avoid a hen when the debtor has not recorded a prior homestead declaration. Amiri is distinguishable on its facts from this case. Moreover, Amiri does not address on the merits, the priority issue between the judicial hen and the declared homestead. The issue in Amiri was whether a creditor’s lien impaired the automatic homestead exemption when there was little or no surplus equity in the property — ie." }, { "docid": "15916815", "title": "", "text": "employs the trustee’s avoidance power pursuant to § 522(h). Therefore, the Debtor is time barred. However, the Debtor also argued that the WAMCO hen could be avoided under 11 U.S.C. § 522(f) if the Court decided that the Debtor was foreclosed from exercising the avoidance powers. The Court agrees with the Debtor and will allow the Debtor to partially avoid the WAMCO hen, pursuant to § 522(f). Section 103(a) provides that § 522(f) applies to all bankruptcy cases, and it is settled law that a Chapter 13 debtor can utilize § 522(f) to avoid a judicial hen that impairs an exemption, or a nonpossessory, non-purchase money security interest in household goods that would be exempt property under applicable law. See 11 U.S.C. § 522(f); See also, In re Miller, 299 F.3d 183, 185-86 (3d Cir.2002) (applying § 522(f) in the context of a Chapter 13 case); In re Maddox, 15 F.3d 1347, 1350 (5th Cir.1994) (allowing Chapter 13 debtor to utilize § 522(f) to avoid a non-possesso-ry, non-purchase money hen on personal property); In re Task, 80 B.R. 304, 306 (Bankr.D.N.J.1987) (allowing Chapter 13 debtor to utilize § 522(f) to avoid a judicial hen that impaired exemption). The hen avoidance power contained in § 522(f) enables the debtor to extinguish or partially avoid the judicial lien of a creditor in property that would otherwise be exempt but for the creditor’s hen. Section 522(f) sets forth the formula to determine the extent to which a hen impairs an exemption: (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of- (i) the lien, (ii) all other liens on the property; and (in) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. 11 U.S.C. § 522(f)(2)(A). Utilizing this formula, a debtor is permitted to avoid only that portion of the lien that impairs the exemption. In the matter at hand, the Debtor claims" }, { "docid": "17410901", "title": "", "text": "manner. See Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 1648, 118 L.Ed.2d 280 (1992). Once it is exempted, property is withdrawn from the bankruptcy estate, and thus from the reach of pre-petition creditors, for the benefit of the debtor. Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 1835, 114 L.Ed.2d 350 (1991). Because it attaches to the property as an in rem liability, a judicial lien ordinarily is not adversely affected in a bankruptcy case. Garran v. S.M.S. Financial V, 338 F.3d 1, 3 (1st Cir.2003). A judicial lien may, however, be avoided in accordance with § 522(f)(1) when it hinders a debtor’s “fresh start”. Id. The formula for determining whether a judicial hen impairs an exemption is as follows: For purposes of ... [§ 522(f)(1)], a hen shall be considered to impair an exemption to the extent that the sum of— (I) the hen; (ii) all other hens in the property; and (in) the amount of the exemption that the debtor could claim if there were no hens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any hens. 11 U.S.C. § 522(f)(2)(A). Except for respondents’ judicial hen in the amount of $5,817.00, there are no hens against the property in which debtors have taken an exemption pursuant to § 522(d)(1). As a general matter, the maximum exemption joint debtors may take in their personal residence is $34,850.00. See 11 U.S.C. §§ 522(d)(1),(m). Due to other exemptions debtors have taken in accordance with the so-called “wild card” provision found at § 522(d)(5), the maximum exemption debtors in this case theoretically may take in the absence of any hens against their residence in accordance with § 522(d)(1) is $34,388.00, the precise amount of the exemption they have taken. It follows from the foregoing that respondents’ judicial hen may not be avoided if the value of debtors’ joint interest in their personal residence in the absence of any hens equals or exceeds $40,205.00 ($5,817.00 + $34,388.00 = $40,205.00). The issue we must decide to" }, { "docid": "11710115", "title": "", "text": "property is a liability in rem, it is not routinely discharged at the conclusion of the bankruptcy case. Wrenn v. Am. Cast Iron Pipe Co. (In re Wrenn), 40 F.3d 1162, 1164 (11th Cir.1994). However, because judicial liens may interfere with the “fresh start” the Bankruptcy Code seeks to give debtors, such liens may be avoidable under a separate provision of the Bankruptcy Code, § 522(f). That provision permits a debt- or to avoid a judicial lien to the extent it “impairs an exemption to which the debtor would have been entitled.” 11 U.S.C. § 522(f)(1). Pursuant to this section, the debtor can avoid a particular judicial lien if, in order to satisfy it, he would have to use assets he is otherwise entitled to set aside from the bankruptcy estate as exemptions. Section 522(f)(2) establishes a formula for determining whether a lien impairs an exemption: [A] lien shall be considered to impair an exemption to the extent that the sum of— (i) the lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. Id. § 522(f)(2)(A). See Snyder v. Rockland Trust Co. (In re Snyder), 279 B.R. 1, 4 (1st Cir. BAP 2002). Avoidance of judicial liens under § 522(f) is not an “all-or-nothing matter”; a debtor is permitted to avoid only that portion of the judicial lien that infringes upon the exemption to which he is entitled. East Cambridge Savings Bank v. Silveira (In re Silveira), 141 F.3d 34, 35-36 (1st Cir.1998). If the judicial lien does not impair the exemption—if the value of the property is greater than the sum of the hens attached to it and the exemption—then the debtor cannot avoid the lien and it will remain attached to the property. Garran filed a motion to avoid Citizens’ judicial lien on the Hingham property in its entirety on the ground that it impaired the homestead exemptions to which he" }, { "docid": "13692329", "title": "", "text": "V.DISCUSSION The parties seek a determination of the meaning of the phrase “a judgment arising out of a mortgage foreclosure,” as used in § 522(f)(2)(C). Subsection 522(f)(1) allows a debtor to avoid certain liens to the extent the liens impair an exemption to which a debtor is entitled. Of relevance here is subparagraph (A) of § 522(f)(1) which addresses judicial liens: (f)(1) Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien ... In this case, the Debtors filed a motion to avoid several judicial liens which they alleged impaired their homestead exemption and the Bank objected to avoidance of its lien. Paragraph 522(f)(2) sets forth the formula to be utilized in determining whether a particular lien impairs an exemption. It provides: (f)(2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of— (i)the lien, (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. (B) In the case of a property subject to more than 1 lien, a lien that has been avoided shall not be considered in making the calculation under sub-paragraph (A) with respect to other hens. (C) This paragraph shall not apply with respect to a judgment arising out mortgage foreclosure. A. Whether Mortgage Deficiency Judgments Are Excluded From Avoidance Under § 522(f) by Virtue of § 522(f)(2)(C) 1. Framing the Analysis The parties have framed the issue on appeal to be whether § 522(f)(2)(C) should be construed to exclude mortgage deficiency judgments from avoidance under § 522(f). Indeed, this is the way the issue has been framed in most of" }, { "docid": "3099805", "title": "", "text": "To further accomplish this goal, § 522(f) provides in pertinent part: (f)(1) ... [T]he debtor may avoid the fixing of a hen on an interest of the debtor in property to the extent that such hen impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such hen is— (A) a judicial lien[.] (2)(A) For the purposes of this subsection, a hen shah be considered to impair an exemption to the extent that the sum of— (i) the hen; (ii) all other hens on the property; and (hi) the amount of the exemption that the debtor could claim if there were no hens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any hens. (B) In the case of a property subject to more than 1 hen, a hen that has been avoided shah not be considered in making the calculation under subparagraph (A) with respect to other hens. 11 U.S.C.A. § 522(f) (West Supp.2003). The § 522(f)(2) formula is “a relatively simple calculation of value minus the sum of other hens, the exemption, and the judicial hen to be avoided. In the event this formula produces a negative number, the judicial hen must be avoided in that amount since this is the extent to which the exemption is impaired.” Sheth v. Affiliated Realty & Mgmt. Co. (In re Sheth), 225 B.R. 913, 916 (Bankr.N.D.Ill.1998); see also Tedeschi v. Falvo (In re Falvo), 227 B.R. 662, 666 (6th Cir. BAP 1998). However, a judicial, hen remains in any amount greater than the impairment, as “partial hen avoidance is appropriate in these circumstances and ... full avoidance is inconsistent with the language and intent of the statute.” Falvo, 227 B.R. at 666. In this action, the Debtors urge the court to strictly follow the statutory language of § 522(f)(2), using the formula without any consideration as to priority under state law. Colonial, on the other hand, requests that the court respect the state law priority scheme in its apphcation of § 522(f)(2) and," }, { "docid": "4767336", "title": "", "text": "Montana law as of the bankruptcy petition date, November 8, 1994. Further, the property is subject to a valid first lien for unpaid real property taxes of $5,535.27. Mont.Code Ann. § 70-32-104(1) limits a homestead to a monetary value of $40,000 and subsection (2) further provides: If a claimant who is an owner of an undivided interest in real property claims a homestead exemption, he is limited to an exemption amount proportional to his undivided interest. See, In re Loeb, 12 Mont.B.R. 524, 533 (Bankr.Mont.1993). The Debtor’s interest in the real property has a value of $31,950, which is subject to the Debtor’s proportional homestead interest of $20,000. Debtor’s motion to avoid the Bank’s judicial lien is based upon § 522(f)(1). Congress’ recent amendments to § 522(f) by the Bankruptcy Reform Act of 1994, P.L. 103-394, determine the result of the pending motion. Neither party in their memorandum discusses the recent legislation. The holding of In re Chabot, 992 F.2d 891 (9th Cir.1993), was legislatively reversed by The Bankruptcy Reform Act of 1994, Section 303, by amending Section 522(f) to provide a definition of impairment as follows: (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of— (i) the hen (ii) all other hens on the property; and (hi) the amount of the exemption that the debtor could claim if their were no hens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any hens. (B) In the case of a property subject to more than 1 hen, a hen that has been avoided shall not be considered in making the calculation under subparagraph (A) with respect to other hens. (C) This paragraph shah not apply with respect to a judgment arising out of a mortgage foreclosure. Unlike Chabot, using the new mathematical formula of § 522(f)(2)(A), a judgment hen will impair a debtor’s homestead exemption to the extent the sum of that judgment hen, other avoidable hens, if any, and the apphcable exemption exceed the value" }, { "docid": "17719804", "title": "", "text": "522(f)(2); however, using this calculation, the lien is only partially avoided. Section 522(f) provides: (1) Notwithstanding any waiver of ex-' emptions but subject to paragraph (3), the debtor may avoid the fixing of a hen on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien,.... (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of— (i) the lien, (ii) all other liens on the property; and (in) the amount of the exemption that the debtor could claim if there were no hens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any hens. 11 U.S.C. § 522. (emphasis added.) The bankruptcy court apphed this formula as follows: Judicial lien $ 33,795.24 Other liens $114,000.00 Exemption $ 10,800.00 Total $158,595.24 The bankruptcy court then found that “the value of the subject property unencumbered is less than the value of the sum of all hens on the property and the applicable exemption entitlement.” (Mem. Op. 10/17/97 at 6.) Under the statutory language, the bankruptcy court properly found that this sum ($158,-595.24) exceeded the value that the debtor’s interest in the property would have in the absence of any hens ($136,000). Thus the bankruptcy court correctly determined that Tedeschi’s judicial hen impaired the Falvos’ exemption under § 522(f). The bankruptcy court further ordered the avoidance of the entire judicial hen. However, § 522(f) provides that a judicial hen may be avoided only “to the extent that” it impairs an exemption. The Panel concludes that in the circumstances of this case, the plain language of § 522(f) mandates only partial hen avoidance. The total of the two consensual hens plus the judicial lien and the exemption ($158,595.24) exceeds the value of the property ($136,000) by $22,595.24. Thus, Tedeschi’s hen ($33,795.24) should be avoided and reduced to the extent of $22,595.24. The balance" }, { "docid": "19382120", "title": "", "text": "altogether; rather it was intended to preserve the debt- or’s exemption. The legislative history of this section provides: Subsection (f) protects the debtor’s exemptions, his discharge, and thus his fresh start by permitting him to avoid certain hens on exempt property. The debtor may avoid a judicial hen on any property to the extent that the property could have been exempted in the absence of the hen. H.R.Rep. No. 595, 95th Cong., 1st Sess. 362 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 76 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6318. Section 2 was added in 1994 to define the words “impair an exemption” in § 522(f)(1). “This amendment would provide a simple arithmetic test to determine whether a hen impairs an exemption, based upon a decision, In re Brantz, 106 B.R. 62 (Bankr.E.D.Pa.1989), that was favorably cited by the Supreme Court in Owen v. Owen, 500 U.S. 305, 313, n. 5, 111 S.Ct. 1833, 1838, n. 5, 114 L.Ed.2d 350 (1991).” H.R.Rep. 103-834, 103rd Cong., 2nd Sess. 35-37 (October 4, 1994); 140 Cong.Rec. H10769 (Oct. 4, 1994). See In re Wilson, 90 F.3d 347, 350 (9th Cir.1996) (subsection 522(f)(2)(A) sets forth a formula to determine whether a lien impairs an exemption). Applying this formula to the facts of this case, we can determine that the bank’s lien impairs Debtors’ exemption: Sum of: the lien...............$ 92,565 all other liens.......... 158,000 ......... 3,817 ......... 32,843 the exemption......... 75.000 $362,225 The sum of $362,225 exceeds the value of Debtors’ interest in the property in the absence of any liens, or $270,000. Therefore, the bank’s lien impairs the exemption. The question before the Panel, however, is to what extent the lien impairs the exemption and must be avoided. The plain meaning of the statute provides that the lien impairs the exemption “to the extent that the sum of [the liens and exemption] exceeds the value that the debtor’s interest in the property would have in the absence of any lien.” In the present ease, the extent of impairment is $362,225 minus $270,000, or $92,225. The judicial liens may be avoided to that amount." }, { "docid": "11710116", "title": "", "text": "amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. Id. § 522(f)(2)(A). See Snyder v. Rockland Trust Co. (In re Snyder), 279 B.R. 1, 4 (1st Cir. BAP 2002). Avoidance of judicial liens under § 522(f) is not an “all-or-nothing matter”; a debtor is permitted to avoid only that portion of the judicial lien that infringes upon the exemption to which he is entitled. East Cambridge Savings Bank v. Silveira (In re Silveira), 141 F.3d 34, 35-36 (1st Cir.1998). If the judicial lien does not impair the exemption—if the value of the property is greater than the sum of the hens attached to it and the exemption—then the debtor cannot avoid the lien and it will remain attached to the property. Garran filed a motion to avoid Citizens’ judicial lien on the Hingham property in its entirety on the ground that it impaired the homestead exemptions to which he was entitled. At the time the motion was filed, Citizens’ lien on the property (component (i) of the formula) was valued at $62,789.79. In addition to this lien, there were two mortgages on the property with a combined value of $194,857.91 (component (ii) of the formula). In order to determine whether the sum of the liens and the exemptions exceeds the value of the property, we must determine “the amount of the exemption that the debtor could claim.” § 522(f)(2)(A)(iii). This is the single issue of dispute in this appeal. III. As the Massachusetts courts have not yet addressed the interplay between a § 1 exemption declared by a non-debtor spouse and a § 1A exemption declared by a debtor, we must predict how the Massachusetts Supreme Judicial Court would interpret the statute. Caron v. Farmington Nat’l Bank (In re Caron), 82 F.3d 7, 9 (1st Cir.1996). Because homestead laws are “designed to benefit the homestead declarant and his or her family by protecting the family residence from the claims of creditors,” Massachusetts courts have" } ]

[ { "docid": "22619740", "title": "", "text": "employed by the BIA. See Campos-Sanchez, 164 F.3d at 450 (stating that a denial of full and fair hearing that results in prejudice violates due process); Colmenar, 210 F.3d at 971 (“prejudice ... means that the outcome of the proceeding may have been affected by the alleged violation.”). Moreover, had Singh been notified of the newly announced evidentia-ry requirements, he may very well have been able to secure the necessary affidavits or declarations. Because the BIA improperly announced a new evidentiary standard in Singh’s case, and, as a result, denied Singh his due process right to a full and fair hearing, we grant the petition and remand to the BIA with instructions to remand for further proceedings before the immigration judge consistent with this disposition. PETITION FOR REVIEW GRANTED. . Because the final order of deportation was filed after October 30, 1996 and the case was pending before April 1, 1997, we have jurisdiction to review the BIA's decision under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the “IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Pub.L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996). The transitional rules provide that the Immigration and Naturalization Act (“INA”) applies as codified prior to the passage of the IIRIRA. See IIRIRA §§ 306(c)(1), 309(a); Duarte de Guinac v. INS, 179 F.3d 1156, 1158 n. 2 (9th Cir.1999); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We therefore have jurisdiction under the pre-IIR-IRA judicial review provision of the INA. See 8 U.S.C. § 1105a (1996). . . Singh ■ also filed a motion to reconsider, which is currently pending in the BIA. We may review the denial of a motion to reopen while the motion to reconsider is pending. See Escobar-Ramos v. INS, 927 F.2d 482 (9th Cir.1991); Dhangu v. INS, 812 F.2d 455 (9th Cir.1987). . Nor do they today. See 8 C.F.R. § 3.23. . Furthermore in In re Kanwaljit Singh, Interim Decision (BIA) 3324 (1997), the BIA concluded that \"exceptional circumstances” were established when Kanawljit Singh \"submitted a" } ]

[ { "docid": "22761557", "title": "", "text": "24, 2008. Petitioners filed a second motion to reopen on February 4, 2009 — based on allegedly new country conditions' — seeking to reapply for asylum, withholding of removal, and protection under the CAT. Petitioners asserted they belong to a particular social group: Mexicans returning home from the United States who are targeted as victims of violent crime as a result. Certified Administrative Record (“AR”) 15-16. Petitioners claimed that the authorities in Mexico do nothing to protect this particular class of Mexicans. AR 16. In support of their motion, Petitioners submitted declarations, news articles describing current violence in Mexico primarily associated with drug trafficking and drug cartels, as well as a new asylum application. AR 29-57. Because their second motion to reopen was based on allegedly new country conditions, Petitioners argued that the time limitations set on motions to reopen did not apply. AR 20. The BIA held that Petitioners’ second motion to reopen was untimely and number-barred, and Petitioners failed to demonstrate changed country conditions. AR 8-9. Further, the BIA held that, even if changed country conditions existed, Petitioners failed to demonstrate prima facie eligibility for the requested relief. AR 9. On those grounds, the BIA denied the motion. II. We review for an abuse of discretion the BIA’s denial of a motion to reopen. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Motions to reopen are disfavored due to the “strong public interest in bringing litigation to a close.” See INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). They are particularly disfavored in immigration proceedings, where “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); see Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996). A motion to reopen will not be granted unless the respondent establishes a prima facie case of eligibility for the underlying relief sought. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003). III. As case law in this circuit makes clear," }, { "docid": "898551", "title": "", "text": "reconsider was denied, that she did have a right to appeal to the BIA and instructing her to follow the normal procedure by filing that appeal “with the Board of Immigration Appeals within 30 calendar days.” Finally, any concerns about delays in the reinstatement process caused by petitioners who appeal to the BIA instead of petitioning directly to this court should be minimal in future cases: in light of our opinion, the BIA would be well advised to institute a process for quickly dismissing such appeals. More important, the agency can without delay correct its practice of misleading immigrants by changing its erroneous notices, both by the IJ and in the document accompanying the notice of decision. Instead of erroneously advising petitioners to appeal to the BIA or that they have no further legal recourse at all, its notices could inform them, for example, that their sole remedy in the case of a negative reasonable fear determination is to petition this court for review within thirty days of the IJ’s decision. In light of these circumstances, we hold that the “final” order in this case is the BIA’s dismissal of Ayala’s appeal. Because Ayala’s petition for review was filed four days after this final order, it is timely filed, and we have jurisdiction to review the IJ’s denial of the motion to reopen and reconsider. II. The IJ abused his discretion in denying Ayala’s motion to reopen and reconsider. A motion to reconsider addresses whether an IJ made errors of law or fact, whereas a motion to reopen may be granted only upon a proffer of new evidence that “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.23(2), (3); accord Iturribarria v. I.N.S., 321 F.3d 889, 895 (9th Cir. 2003). “We review the BIA’s denial of motions ... to reconsider for abuse of discretion, although [de novo] review applies to the BIA’s determination of purely legal questions.” Cano-Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002) (internal quotation marks omitted) (alteration in original). At the hearing" }, { "docid": "22669183", "title": "", "text": "the IJ arguing that his client never intended to give up his right to present his asylum claim, but only withdrew his application because he believed the IJ did not intend to grant asylum. The IJ found Cano had failed to demonstrate prima facie eligibility for the relief sought and denied his motion to reopen. On December 22, 1997, Cano filed before the IJ a motion to reconsider denial of his motion to reopen. Cano’s attorney reported that Cano “withdrew the asylum claim only because he understood that the [IJ] would not grant it,” and was relying on the IJ as “a person of authority ... to help him assess [his] asylum claim.” Cano alleged the IJ denied him due process, contested that he was not allowed to “explain or rebut” material contained in the Guatemala report, and asserted that he could have demonstrated a well-founded fear of persecution. The IJ denied Cano’s motion to reconsider. Cano appealed this decision to the BIA and filed also a motion to reopen with the BIA to seek relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim" }, { "docid": "22801529", "title": "", "text": "established a prima facie case of eligibility for relief); see also In re G-C-L, 23 I. & N. Dec. 359, 361 (BIA 2002) (prima facie eligibility for asylum is a requirement for granting a motion to reopen). In arguing that it was correct for the BIA to require a showing of prima facie eligibility, the government acknowledges the similarity between Mendez-Gutierrez’s reinstatement request and a motion to reopen, noting that, “like a motion to reopen, his reinstatement request sought to bring a closed matter back to life.” Moreover, aliens who have challenged removal proceedings after voluntarily withdrawing their applications for asylum typically have used motions to reopen as the procedural mechanism for bringing the challenge. See Cano-Merida v. INS, 311 F.3d 960, 963 (9th Cir.2002) (petitioner filed motion to reopen asylum application that he had voluntarily withdrawn after IJ warned him he had no valid claim for asylum); Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (petitioner withdrew asylum application, accepted voluntary departure, and then filed a motion to reopen asylum case based on new evidence); Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.1998) (same). That Mendez-Gutierrez sought to reinstate his asylum application before the IJ issued an order of removal, rather than filing a motion to reopen after the order was issued, does not deprive us of meaningful standards for judicial review of the BIA’s action. Accordingly, we hold that we have jurisdiction to review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his withdrawn application for asylum, as we would over the denial of a motion to reopen. 8 U.S.C. § 1252(b). II. Because we are proceeding by analogy to the standards applicable to the denial of a motion to reopen, we review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his asylum application for abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002) (denial of motion to reopen is reviewed for abuse of discretion). Our review is limited to the grounds on which the BIA based its denial. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988). The BIA determined that" }, { "docid": "23181980", "title": "", "text": "entry of the May 7, 2001, order, which was the order petitioner wanted the court to reconsider; • the petitioner was no longer eligible for cancellation of removal, since she had remained in the United States beyond the date set for her voluntary departure, see 8 U.S.C. § 1229c(d); and • petitioner did not support her motion to reopen with a copy of the application for the relief requested, see8 C.F.R. § 1003.23(b)(3). On October 10, 2002, petitioner timely appealed the IJ’s decision to the BIA. On November 28, 2003, the BIA affirmed the IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4), thereby rendering the IJ’s September 10, 2002, decision the final agency determination for purposes of judicial review. Petitioner then petitioned this court for review of the IJ’s September 10, 2002, decision. Tapia-Martinez v. Gonzales, 142 Fed.Appx. 882, 883-84 (6th Cir.2005). This Court denied the petition for review on July 28, 2005, see id. at 886, holding that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen, or to reconsider, for the numerous reasons set out by the Immigration Judge (“IJ”). Id. at 884. First, we noted that she failed to include the fee receipt as required by 8 C.F.R. §§ 1003.23(b)(l)(ii) & 1003.31(b). Id. Second, although the IJ cited the wrong regulation, the IJ correctly held that petitioner’s motion to reconsider was untimely. The motion was due within thirty days of the IJ’s order becoming final. § 1003.23(b)(1). Id. at 884-85. Because Petitioner’s counsel failed to file a timely appeal, the IJ’s order became final on June 6, 2001, see id. § 1003.39, giving petitioner thirty days from that date to file a motion to reconsider. Id. at 885. Third, we held that Petitioner failed to support her motion to reopen with a copy of the application for relief requested, as required by § 1003.23(b)(3). Id. Lastly, we noted that Petitioner sought to reopen her case because of the ineffective assistance of her prior counsel. Id. We stated that regardless of the merits of her ineffective assistance claim, petitioner did not comply" }, { "docid": "22652015", "title": "", "text": "Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B) (1994). At Petitioners’ deportation hearing, the Immigration Judge (“IJ”) found them de-portable, denied their petitions for asylum and withholding of deportation, and granted voluntary departure. Petitioners appealed first to the BIA, which affirmed the IJ, and then to this court. We denied their petition on January 12, 1995. Ram v. INS, 46 F.3d 1144 (9th Cir.1995) (unpublished disposition). On November 16, 1994, while their petition to this court was pending, Petitioners moved to reopen their deportation proceedings to apply for suspension of deportation. Petitioners argued that suspension was appropriate because, while they were in deportation proceedings, they attained the seven years of continuous physical presence necessary to qualify for such relief. The BIA denied Petitioners’ motion. On appeal, we reversed and remanded to the BIA for further review of hardship. Ram v. INS, 107 F.3d 17 (9th Cir.1997) (unpublished disposition). On remand, the BIA summarily denied Petitioners’ motion on the sole ground that they had not satisfied IIRIRA’s new stop-time rule. That rule requires aliens to meet the continuous physical presence requirement before their deportation proceedings commence. INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) [hereinafter “INA section 240A(d)(1)” or “the stop-time rule”]. Petitioners now petition for review of the BIA final order, contending that: (1) the stop-time rule does not apply to OSCs where an alien seeks suspension of deportation; (2) the application of the stop-time rule to Petitioners violates due process because it is impermissibly retroactive; (3) IIRIRA section 309(c)(5) violates equal protection because it exempts some aliens from the stop-time rule on the basis of their national origin; and (4) in calculating Petitioners’ period of continuous physical presence, the BIA should have considered time accumulated after service of the OSCs. Because this petition falls under IIRI-RA’s transitional rules, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA section 309(c). Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). STATUTORY BACKGROUND Three sets of rules concern us here: (1) the old INA rules, which governed before IIRIRA’s" }, { "docid": "23162001", "title": "", "text": "of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1), concerning an alien’s continuous physical presence in the country. The IJ denied the motion to reconsider, noting that La-gandaon defined one year’s presence as running from “one date to the prior date in the next year,” or “the equivalent of the period from January 1 to December 31, and not that from January 1 to the next January 1.” 383 F.3d at 992 (emphasis in original). The IJ concluded that while she was “sympathetic to [Minasyan’s] situation,” Lagandaon’s definition of a “year” simply reaffirmed her previous conclusion that Minasyan’s application for asylum was untimely. Minasyan appealed the IJ’s denial of his motion to reconsider to the BIA, arguing that the IJ “failed to adequately calculate the time period for filing his [asylum] application.” The BIA denied his appeal, holding that his application was untimely because “he did not mail his asylum application until April 9, 2002, which is one year and one day after his arrival in the United States.” Echoing the IJ, the BIA reasoned that Lagandaon “clearly stated that a year runs from one date to the prior date in the next year, i.e., from January 1 to December 31,” meaning that Minasyan’s one-year period to file for asylum expired on April 8, 2002. Minasyan timely petitioned this court for review. Discussion We review the denial of a motion for reconsideration for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). The BIA abuses its discretion if its decision “is ‘arbitrary, irrational, or contrary to law.’ ” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985)). Where, as here, the BIA bases its decision on a “purely legal question! ] concerning the meaning of the immigration laws,” we review the BIA’s decision de novo. Lagandaon, 383 F.3d at 987. We conclude that the BIA abused its discretion in this case, as its interpretation of the one-year period for filing an asylum application runs directly counter to the plain meaning of the statute. Section 208" }, { "docid": "3797111", "title": "", "text": "discussed above, Socop Gonzalez did not prolong the proceedings. While the decision to reopen proceedings sua sponte is left to the BIA’s discretion, we find it difficult to imagine how this sole unfavorable factor might outweigh the plethora of factors weighing in favor of reopening Socop-Gonzalez’s case. IV Section 3.2(c)(2)’s statute of limitations bars Soeop-Gonzalez’s motion to reopen proceedings against him and the government is not estopped from enforcing the statute of limitations against Socop-Gonza-lez. However, the BIA abused its discretion by failing to consider any factors relevant to the determination whether there is an exceptional situation in which it is- appropriate for the BIA to reopen proceedings on its own motion. Accordingly, we remand to the BIA for further proceedings consistent with this opinion. PETITION GRANTED. REVERSED AND REMANDED. . IIRIRA's transitional rules govern this appeal because deportation proceedings began in Socop-Gonzalez's case before April 1, 1997 (on October 19, 1995) and a final order of deportation was entered after October 30, 1996 (on May 5, 1997). See IIRIRA § 309(c)(1); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). IIRIRA's transitional rules do not deny this court jurisdiction over a motion to reopen where the deportation order was issued under § 241 of the INA. See Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998). . Socop-Gonzalez casts his motion as both a motion to reopen and a motion to reconsider. Properly titled, it is a motion to reopen, not a motion to reconsider, because Socop-Gonza-lez seeks to present new facts not already in evidence. See Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 n. 2 (9th Cir.1983); Ira J. Kurzban, Kurzban’s Immigration Law Source-book 738 (6th ed.1998). Here, Socop-Gonza-lez seeks to present facts pertaining to his eligibility for adjustment of status. This distinction has no impact on the outcome of this appeal because even if it were a motion to reconsider, the BIA properly denied it as untimely. A motion to reconsider \"must be filed with the Board within 30 days after the mailing of the Board decision or on or before July 31, 1996, whichever" }, { "docid": "22319359", "title": "", "text": "BIA’s February 23, 2004 order denying Filja’s motion to reopen. II. Jurisdiction and Standard of Review We have jurisdiction of the Filjas’ petition under 8 U.S.C. § 1252, which grants federal courts of appeals jurisdiction to review final orders of the BIA. We must uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review the BIA’s conclusions of law de novo. We review the BIA’s denial of a motion to reopen for abuse of discretion, Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001), and review its underlying factual findings related to the motion for substantial evidence. Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s denial of a motion to reopen may only be reversed if it is “arbitrary, irrational, or contrary to law.” Id. at 174 (internal quotation marks omitted). III. Discussion A. Timeliness' of Petition to Reopen: The IJ held the Filjas’ asylum hearing on June 28, 1996, denying asylum and withholding of deportation on January 16,1997. In June 1997, the Socialist Party returned to power in Albania. On March 19, 2002, the BIA dismissed the Filjas’ appeal. On October 9, 2003, the Filjas moved under 8 C.F.R. § 1003.2(c)(3)(ii) to reopen and to remand to the IJ to reapply for asylum and withholding of deportation due to changed country conditions and to apply for relief under the CAT. The BIA held that the motion to reopen was untimely, interpreting § 1003.2(c) as requiring that, although the country conditions in Albania had changed subsequent to the date of the IJ’s 1997 decision, the motion should have been made prior to the BIA’s March 19, 2002 decision. Under the applicable regulation, a motion to reopen removal proceedings “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Excepted from this time limitation set forth in paragraph (c)(2) are" }, { "docid": "19607821", "title": "", "text": "Dec. 303, 306 (BIA 1982). Even if the IJ erred in commenting on how he thought Guatemalan civil liability worked, any error was harmless. Further, substantial evidence nonetheless supports the IJ's conclusion that Bartolome's fear that the villagers would seek him out because of damages caused by the water project is not a protected ground. III. Motion to Reopen No statute or regulation specifically addresses whether an alien may file a motion to reopen reasonable fear proceedings. However, in Ayala v. Sessions , we concluded that the IJ abused its discretion in not reconsidering the petitioner's motion for reconsideration of such proceedings. 855 F.3d at 1020-21. Although the petitioner in Ayala filed a motion for reconsideration rather than a motion to reopen, the procedures are the same for both motions. See 8 C.F.R. § 1003.23(b)(2), (3). Nothing in this regulation precludes an alien from filing a motion to reopen before an IJ. To the contrary, § 1003.23(b)(1) provides that an IJ has sua sponte jurisdiction to reopen \"any case in which he or she has made a decision.\" (emphasis added). Here, Bartolome filed a motion to reopen before the IJ. The IJ rejected the motion, concluding he lacked jurisdiction to reopen the matter. This conclusion is contrary to our holding in Ayala and thus was error. The IJ's failure to recognize that he had at least sua sponte jurisdiction to reopen proceedings was an abuse of discretion. See Singh v. Holder , 771 F.3d 647, 650, 653 (9th Cir. 2014) (noting that when the BIA concludes that it lacks the authority to reopen, rather than denying a motion to reopen as an exercise of discretion, the panel has jurisdiction and remand is required). We therefore remand the matter to the IJ to determine whether an exercise of his jurisdiction is warranted. Parties shall bear their own costs on appeal. PETITION FOR REVIEW GRANTED IN PART; DENIED IN PART. This process is also applied to aliens who have been convicted of an aggravated felony. See 8 U.S.C. § 1228(b) ; 8 C.F.R.§ 238.1 ; see also Gomez-Velazco v. Sessions , 879" }, { "docid": "22319376", "title": "", "text": "IJ’s June 1997 opinion. Appropriate regulations were adopted thereafter while the Filjas’ appeal was pending. Under 8 C.F.R. § 208.18(b) aliens in removal proceedings after March 22, 1999 may apply for withholding of removal under the CAT. If a CAT application is incorporated in a motion to reopen, the 90-day limit on such motions set forth in 8 C.F.R. § 1003.2(c)(2) is trumped by the changed country conditions provision of subsection (c)(3)(ii). Thus the BIA’s decision on the Filjas’ CAT ground for reopening fails to demonstrate that the BIA either, reviewed the record or grasped the Filjas’ claim. The Filjas were not time-barred from bringing that claim. IV. Summary We review the denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. at 323, 112 S.Ct. 719. A denial of a motion to reopen will be overturned only if it is “arbitrary, irrational or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (internal quotations omitted). The BIA’s holding that the Fil-jas’ claim for relief based on changed country conditions was time-barred is contrary to law. The BIA’s decision denying the Filjas’ claims for relief based on ineffective assistance of counsel and based on entitlement to relief under the CAT was arbitrary and irrational, and thus an abuse of discretion. It failed to demonstrate any support in the record for its conclusions, and it did not address the serious contentions that the Filjas advanced. V. Conclusion We grant the Filjas’ petition for review and vacate the BIA’s February 23, 2004, decision denying the Filjas’ motion to reopen. Although the evidence submitted in support of the motion to reopen provides strong support for granting the motion to remand the case to an IJ for consideration of the Filjas’ claims for relief in the light of that evidence, this is a determination that the BIA should make in the first instance. Consequently, we will grant the petition and remand the case to the BIA for further proceedings consistent with this opinion. . In this opinion Igli Fiíja will be referred to as \"Fiíja.” When" }, { "docid": "898552", "title": "", "text": "circumstances, we hold that the “final” order in this case is the BIA’s dismissal of Ayala’s appeal. Because Ayala’s petition for review was filed four days after this final order, it is timely filed, and we have jurisdiction to review the IJ’s denial of the motion to reopen and reconsider. II. The IJ abused his discretion in denying Ayala’s motion to reopen and reconsider. A motion to reconsider addresses whether an IJ made errors of law or fact, whereas a motion to reopen may be granted only upon a proffer of new evidence that “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.23(2), (3); accord Iturribarria v. I.N.S., 321 F.3d 889, 895 (9th Cir. 2003). “We review the BIA’s denial of motions ... to reconsider for abuse of discretion, although [de novo] review applies to the BIA’s determination of purely legal questions.” Cano-Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002) (internal quotation marks omitted) (alteration in original). At the hearing before the IJ on her appeal from the negative reasonable fear determination, Ayala stated that she and her husband were the subjects of extortion because of his family’s ownership of hotels. Despite this testimony, the IJ ignored the evidence of persecution on account of her family status in his oral decision: he affirmed the asylum officer “because the only motivation indicated throughout is extortion, criminal acts.” Following the IJ’s affirmance, Ayala moved for reconsideration, again stating that she was afraid to return because she would be targeted based on her family ties. (“Respondent claims that she is afraid of returning as she was married to a Hotel Owner....”). The IJ denied this motion by simply stating that Ayala “did not specify any error of law or fact” and that “the facts stated in the Respondent’s motion were considered in the prior proceeding.” The IJ abused his discretion in concluding that there was no legal error in his previous opinion affirming the negative reasonable fear determination. Contrary to the IJ’s holding, our precedents make clear that" }, { "docid": "22150050", "title": "", "text": "the parties. Id. The record does not indicate that the Department of Homeland Security either opposed or agreed to Diaz’s request for administrative closure. On December 27, 2005, the BIA adopted the IJ’s decision in its entirety. The BIA also denied Diaz’s request for administrative closure on the ground that “her eventual adjustment of status is still speculative at this time,” because she “has not shown prima facie eligibility” for adjustment of status. II In her petition for review, Diaz does not challenge the BIA’s and IJ’s hardship determination, which we lack jurisdiction to review in any event. See 8 U.S.C. § 1252(a)(2)(B)(ii); Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003). Rather, she argues that the BIA abused its discretion in denying her request for administrative closure. Before we reach the merits of her claim, we must determine whether we have jurisdiction to review the BIA’s denial. “[W]e have jurisdiction to determine our own jurisdiction,” Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000), and an obligation to do so sua sponte, Spencer Enters. v. United States, 345 F.3d 683, 687 (9th Cir.2003). Although we have not previously addressed our jurisdiction to consider denials of requests for administrative closure, we are guided by our prior decision in Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002), which involved a substantially similar issue. In Ekimian, the BIA had denied a motion to reopen on the ground that it was untimely and declined to reopen proceedings sua sponte. On appeal, we upheld the BIA’s determination that the motion was untimely. We also considered the petitioners’ argument that the BIA abused its discretion by declining to reopen the proceeding sua sponte under 8 C.F.R. § 3.2(a) (now codified at 8 C.F.R. § 1003.2(a), see 68 Fed.Reg. 9824, 9830 (Feb. 28, 2003)), which states: The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by" }, { "docid": "23104643", "title": "", "text": "that Vukmirovic had “engaged in persecution of others on the basis of race and religion” and was thus “barred from receiving asylum under section 101(A)(42)(B) of the Act.” The IJ denied the motion to reopen because Vuk-mirovic had not complied with Matter of Lozada, but did not address the relief Vukmirovic sought under the Convention Against Torture. The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision under streamlining regulations. 8 C.F.R. § 1003.1(a)(7). Vukmirovic petitions us for review from the BIA’s summary affirmance of the IJ’s denial of his application for asylum and withholding of removal. He challenges the BIA’s streamlining process as a violation of due process and -on the basis that streamlining was inappropriate under the regulations in this case. He also challenges the merits of the IJ’s decision on his asylum application and the decision denying his motion to reopen. Because removal proceedings against Vukmirovic were pending before April 1997, and the BIA issued its final decision after October 1996, we apply the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We therefore have jurisdiction over the asylum claim under 8 U.S.C. § 1105a. Under IIRIRA’s transitional rules, we have jurisdiction to consider Vukmirovic’s challenges to the denial of his motion to reopen. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1223 (9th Cir.2002). Because the BIA adopted the decision of the IJ as the final agency determination of the case, we review the IJ’s decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851(9th Cir.2003); Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995). We review the decision for “substantial evidence.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency’s decision that an applicant is ineligible for asylum can only be reversed where “a reasonable fact-finder would have to conclude that the requisite fear of persecution existed.” Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003) (quoting Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000)). However, we" }, { "docid": "23150115", "title": "", "text": "(9th Cir.2002); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Under IIRIRA’s transitional rules, we have jurisdiction to review the BIA’s denial of a motion to reopen under the now-repealed § 106(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1105a(a). See Rodriguez-Lariz, 282 F.3d at 1222; Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), supra note 2, provides that we may review claims under the Convention Against Torture only as part of review of a final order of removal. FARRA, § 2242(d). Denial of a motion to reopen to present a claim under the Convention qualifies as a final order of removal. See Khourassany v. INS, 208 F.3d 1096, 1099-1100 & n. 4 (9th Cir.2000). We therefore have jurisdiction to address Hamoui’s petition for review. We review for an abuse of discretion the BIA’s denial of a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004). The BIA abuses its discretion when it acts “ ‘arbitrarily, irrationally, or contrary to law.’ ” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). We review de novo questions of law and claims of due process violations in deportation proceedings. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002); Rodriguez-Lariz, 282 F.3d at 1222. We review the BIA’s factual findings for substantial evidence. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). II A Before the BIA, the INS did not contest Hamoui’s assertions that his failure timely to file a motion to reopen for purposes of a claim under the Convention Against Torture was due to the ineffective assistance of his prior counsel. The BIA recited the many failures of counsel and assumed deficient performance. We conclude that the attorneys’ constitutionally deficient performance was established. Ineffective assistance of counsel amounting to a due process violation permits untimely reopening. See Varela v. INS, 204 F.3d" }, { "docid": "22801528", "title": "", "text": "contends that we lack jurisdiction because there is “no law at all” addressing the reinstatement of voluntarily withdrawn applications for asylum. That no statute or regulation specifically governs reinstatement does not, however, mean that there are no meaningful standards against which to evaluate the BIA’s denial of a request for reinstatement. Mendez-Gutierrez’s request to reinstate his withdrawn asylum application is analogous, at least to some degree, to a motion to reopen, which is governed by a clear set of rules and regulations. See, e.g., 8 C.F.R. § 3.2 (2002), recodified at 8 C.F.R. § 1003.23. In both situations, the petitioner is asking the IJ to consider a claim for relief that is no longer pending. Indeed, by requiring Mendez-Gutierrez to show prima facie eligibility for relief in order to prevail on his request for reinstatement of his application, the BIA itself turned to the standards applicable to the granting of motions to reopen. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 376 (9th Cir.2003) (BIA may not grant a motion to reopen unless applicant previously has established a prima facie case of eligibility for relief); see also In re G-C-L, 23 I. & N. Dec. 359, 361 (BIA 2002) (prima facie eligibility for asylum is a requirement for granting a motion to reopen). In arguing that it was correct for the BIA to require a showing of prima facie eligibility, the government acknowledges the similarity between Mendez-Gutierrez’s reinstatement request and a motion to reopen, noting that, “like a motion to reopen, his reinstatement request sought to bring a closed matter back to life.” Moreover, aliens who have challenged removal proceedings after voluntarily withdrawing their applications for asylum typically have used motions to reopen as the procedural mechanism for bringing the challenge. See Cano-Merida v. INS, 311 F.3d 960, 963 (9th Cir.2002) (petitioner filed motion to reopen asylum application that he had voluntarily withdrawn after IJ warned him he had no valid claim for asylum); Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (petitioner withdrew asylum application, accepted voluntary departure, and then filed a motion to reopen asylum case based on" }, { "docid": "22669190", "title": "", "text": "F.3d 393, 395 (9th Cir.1996) (citing INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). The BIA denied Cano’s motion because he failed to make a prima facie showing that he was entitled to relief under the Convention. To qualify for relief, Cano was required to demonstrate it is “more likely than not that [he] would be tortured if removed to [Guatemala].” Abassi v. INS, 305 F.3d 1028, 1030 (9th Cir.2002) (quoting 8 C.F.R. §§ 208.18(b)(2) and 208.16(c)(2)(4)). The Convéntion’s implementing regulations define torture as “any act by which severe pain or suffering ... is intentionally inflicted on a person” for certain purposes “when such pain or suffering is inflicted by or at the instigation -of or with the consent or acquiescence .of a public official or other person acting in an official capacity.” Id. at 1030 n. 3- (quoting 8 C.F.R. § 208.18(a)(1)). The evidence provided by Cano in support of his motion does not demonstrate it is more likely than not he would be tortured with the consent or acquiescence of a public official if he returns to Guatemala. Accordingly, the BIA did not abusé its discretion by refusing to reopen Cano’s case for consideration under the Convention, and Cano’s petition from this motion is denied. CONCLUSION Because Cano was denied a meaningful opportunity to present his asylum application, we grant his petition and remand to the BIA with instruction to order a new hearing before the IJ. We deny Cano’s petition with respect to his motion to reopen to seek relief under the Convention. Petition for review DENIED in part, GRANTED in part, and REMANDED with an instruction to order a new hearing. . We have jurisdiction over Cano's petition pursuant to 8 U.S.C. § 1105(a)(2), as amended by Section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act. . The Immigration and Naturalization Service asserts that the BIA \"acted within its discretion in dismissing Cano's appeal because he failed to allege any error in the [IJ's] decision denying the motion to reconsider.” Contrary to this assertion, Cano alleged that the" }, { "docid": "23543049", "title": "", "text": "country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review. II. The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu’s motion to reopen, and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA’s ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted). Similarly, we review the BIA’s evidentiary rulings deferentially. See Cheng v. Att’y Gen., 623 F.3d 175, 182 (3d Cir.2010). III. With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief based on an untimely motion to reopen, Zhu had to provide material evidence of changed conditions in China that could not have been discovered or presented during the previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(h). Here, the BIA denied Zhu’s motion to reopen her removal proceedings because it found: (1) “[h]er evidence is not sufficient to establish a material change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing another late motion to reopen to apply for asylum,” and (2) she “has not demonstrated a prima facie case for protection under [CAT].” App. 6. To determine if the BIA abused its discretion in finding that Zhu did not present evidence to establish a material change in country conditions, we must determine if the BIA meaningfully considered the evidence and arguments Zhu presented. Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.2008). This does not mean that the BIA is required to expressly parse each point or discuss each" }, { "docid": "19881400", "title": "", "text": "Iran; however, the IJ also granted him protection under CAT and ordered deferral of his deportation pursuant to 8 C.F.R. § 208.17 (duplicated at 8 C.F.R. § 1208.17). Approximately six years later, on December 15, 2005, petitioner filed his motion to reopen the removal proceeding. Therein, petitioner sought an adjustment of his status to that of lawful permanent resident by reason of his marriage to a United States citizen. The IJ denied the motion to reopen as untimely, reasoning that the time limitations set forth in 8 C.F.R. § 1003.23(b)(1) applied to bar petitioner’s request for relief, and that 8 C.F.R. § 1208.17(e), which might otherwise authorize a motion to reopen by an alien, was inapplicable because petitioner did not seek the only relief authorized therein. Petitioner appealed the IJ’s decision, which was affirmed on October 24, 2006, by the BIA. The BIA held that, pursuant to 8 C.F.R. § 1003.39 (relating to the finality of decisions of immigration judges), the January 31, 2000, decision of the IJ became final upon the expiration of the ninety-day period in which petitioner was entitled to appeal the decision. With the present petition, petitioner seeks review of the October 24, 2006, decision by the BIA. A denial of a motion to reopen immigration proceedings is generally reviewed for abuse of discretion; however, where, as here, the issue presented is a “purely legal question,” a de novo standard applies. Cano-Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir.2002). In 2000, petitioner was ordered to be deported, but his removal was deferred pursuant to CAT. The regulations are clear that motions to reopen removal orders must be filed no later than ninety days after the date of entry of the removal order. 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later.”). Petitioner’s motion to reopen was not filed until almost six years later, on December 15, 2005. He nevertheless contends that his motion is timely" }, { "docid": "22760423", "title": "", "text": "hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two exceptions to this rule, but Membreno does not claim, and cannot claim, that either exception applies here. See Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdiction over untimely petitions for review where alien was officially misled as to time in which to file notice of appeal or where BIA failed to comply with certain federal regulations requiring the mailing of its decision to the petitioner's (or his counsel’s) address of record). . We cannot here grant relief on the petition for review by construing Membreno's motion to reopen instead as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (affirming the BIA’s decision to construe a motion to reconsider as a motion to reopen when the motion alleged new facts rather than legal error). A motion to reconsider must be filed \"within 30 days after the mailing of the Board decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno's motion was filed nearly 90 days after the initial decision. Furthermore, a motion to reconsider \"shall state the" } ]

[ { "docid": "22182553", "title": "", "text": "the teachings there found against making just such a mosaic. On the contrary, the references and the uncontested testimony, as above indicated, established that PTFE is sui generis. It is not surprising, therefore, that, unlike the situation in Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed. Cir.1983), there was no testimony and no finding that one skilled in the art would transfer conventional thermoplastic processes to those for unsintered PTFE, or would have been able to predict what would happen if they did. To imbue one of ordinary skill in the art with knowledge of the invention in suit, when no prior art reference or references of record convey or suggest that knowledge, is to fall victim to the insidious effect of a hindsight syndrome wherein that which only the inventor taught is used against its teacher. It is difficult but necessary that the deci-sionmaker forget what he or she has been taught at trial about the claimed invention and cast the mind back to the time the invention was made (often as here many years), to occupy the mind of one skilled in the art who is presented only with the references, and who is normally guided by the then-accepted wisdom in the art. Had that been here done the inventions set forth in the claims 3 and 19 of the ’566 patent could only have been held non-obvious to those skilled in the art at the time those claimed inventions were made. Error in visualizing the burden of proof on obviousness may have contributed to the court’s application here of the prior art. Adopting the phrase from earlier precedents, the court said “the presumption [of validity] is weakened greatly where the Patent Office has failed to consider pertinent prior art”. That is not the law of established precedent in this court. SSIH Equipment S.A. v. ITC, 718 F.2d 365, 218 USPQ 678, 687 (Fed.Cir.1983); Solder Removal Co. v. ITC, 582 F.2d 628, 633, 199 USPQ 129, 133, n. 9 (CCPA 1978). The presumption has no separate evidentiary value. It cautions the decisionmaker against a" } ]

[ { "docid": "15945590", "title": "", "text": "anticipate the patent, but felt that: Taken together, the prior art references relevant to Ecolochem’s invention disclose all of the elements of the claimed invention, and their combined teachings would have suggested to one of ordinary skill in the art that the Houghton process could be followed by the use of mixed bed ion exchange resins to provide ambient temperature deoxygenation and remove excess hydrazine as well as dissolved and undissolved carbon contaminants. Id. at *34. “A patent may not be obtained ... if the differences between the [claimed invention] and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (Supp. III 1997). Our analysis of the patentability of Ecolo-chem’s invention begins with the phrase “at the time the invention was made.” Here, the date of the invention is presumed to be the filing date of the parent application, December 16, 1983. In In re Dembiczak, we noted that: Measuring a claimed invention against the standard established by section 103 requires the oft-difficult but critical step of casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.Cir.1999). We “cannot use hindsight reconstruction to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention.” In re Fine, 837 F.2d 1071, 1075, 5 USPQ2d 1596 (Fed.Cir.1988). Our ease law makes clear that the best defense against hindsight-based obviousness analysis is the rigorous application of the requirement for a showing of a teaching or motivation to combine the prior art references. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. “Combining pri- or art references without evidence of such a suggestion, teaching, or motivation simply takes the inventor’s disclosure as a blueprint for piecing together the prior art to defeat patentability — the" }, { "docid": "23045132", "title": "", "text": "that art is more pertinent than the art considered by the PTO may facilitate meeting the burden of proving invalidity. W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 U.S.P.Q. 303, 313 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). Obviousness under 35 U.S.C. § 103 is a legal conclusion involving a preliminary determination of four factual inquiries: (1) the scope and content of the prior art; (2) the differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations, if any, of nonobviousness. Secondary considerations include objective in-dicia of nonobviousness such as commercial success, long-felt but unsolved need, and failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545, 148 U.S.P.Q. 459, 467 (1966); Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566-68, 1 U.S.P.Q.2d 1593, 1596-97 (Fed.Cir.), cert. denied, — U.S. -, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987). The factual findings of the district court underlying the obviousness determination will be overturned on appeal only if they are clearly erroneous. Panduit Corp. v. Dennison Mfg. Co., 810 F.2d at 1566, 1 U.S.P.Q. at 1596. The ultimate conclusion on obviousness, however, is a legal conclusion and is reviewed as such. Polaroid Corp. v. Eastman Kodak Co., 789 F.2d 1556, 1558, 229 U.S.P.Q. 561, 562 (Fed.Cir.), cert. denied, — U.S.-, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986). The obviousness standard, while easy to expound, is sometimes difficult to apply. It requires the decisionmaker to return to the time the invention was made. “The invention must be viewed not with the blueprint drawn by the inventor, but in the state of the art that existed at the time.... That which may be made clear and thus ‘obvious’ to a court, with the invention fully diagrammed and aided ...” by experts in the field, “may have been a breakthrough of substantial dimension when first unveiled.” Interconnect Planning Corp. v. Fell, 774 F.2d 1132, 1138, 227 U.S.P.Q. 543, 547-48 (Fed.Cir.1985). In this" }, { "docid": "22182554", "title": "", "text": "(often as here many years), to occupy the mind of one skilled in the art who is presented only with the references, and who is normally guided by the then-accepted wisdom in the art. Had that been here done the inventions set forth in the claims 3 and 19 of the ’566 patent could only have been held non-obvious to those skilled in the art at the time those claimed inventions were made. Error in visualizing the burden of proof on obviousness may have contributed to the court’s application here of the prior art. Adopting the phrase from earlier precedents, the court said “the presumption [of validity] is weakened greatly where the Patent Office has failed to consider pertinent prior art”. That is not the law of established precedent in this court. SSIH Equipment S.A. v. ITC, 718 F.2d 365, 218 USPQ 678, 687 (Fed.Cir.1983); Solder Removal Co. v. ITC, 582 F.2d 628, 633, 199 USPQ 129, 133, n. 9 (CCPA 1978). The presumption has no separate evidentiary value. It cautions the decisionmaker against a rush to conclude invalidity. Submission of additional art that is merely “pertinent” does not dispel that caution. It is difficult to imagine a patent law suit in which an accused infringer is unable to add some new “pertinent” art. The inescapable burden of. persuasion on one who would prove invalidity, however, remains throughout the trial. 35 U.S.C. § 282. The burden of proving invalidity may of course be facilitated by prior art that is more pertinent than that considered by the PTO. That did not happen here. In the present case, Sumitomo, Smith, and the ’915 patent were among references considered by the PTO. Other references referred to as not considered were merely cumulative, disclosing nothing not disclosed in references that were considered by the PTO. The Canadian counterpart of Nash was considered by the PTO. The relevant disclosures of Markwood appear in Sandiford patent 3,544,671 and Paratheon patent 3,637,-906, both considered by the PTO. The Russian Author’s Certificate 240,997, assuming its status as prior art and whatever the material with which it dealt, contributed" }, { "docid": "11593872", "title": "", "text": "86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The Court must usually determine the scope and content of the relevant prior art, the difference between the prior art and the claimed subject matter, the level of ordinary skill in the pertinent field of endeavor and any objective evidence of non-obviousness. Graham, 383 U.S. at 18, 86 S.Ct. at 694. 14. Invalidation of a patent claim under § 103 requires a determination that it would have been obvious to combine prior art existing at the time the invention was made to produce the claimed subject matter. 35 U.S.C. § 103; Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1050-51 (Fed.Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). Courts are expressly prohibited from using the patent or invention at issue as a guide to combine bits and pieces of earlier designs and then reach a conclusion of obviousness. The decisionmaker must forget what he or she has been taught about the claimed invention and cast the mind back to the time the invention was made. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1552-1553 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). 15. The question of obviousness should not be decided by reference through hindsight by using the asserted claim as a guide through a maze of prior art references which combine the right references in the right ways so as to achieve the result of the invention, as defined by the asserted claim. Monday morning quarterbacking is quite improper when resolving the question of nonobviousness in a court of law. Orthopedic Equip. Co. v. United States, 702 F.2d 1005 (Fed.Cir.1983). 16. A showing of commercial success of the patented invention is objective evidence of nonobviousness. Bio-Rad Lab., Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 611-12 (Fed.Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). Another form of objective evidence of nonobviousness is that the patented invention filled a long felt need in the pertinent industry. Kansas Jack, Inc. v. Kuhn, 719 F.2d 1144, 1150" }, { "docid": "9713037", "title": "", "text": "legitimate test of patentability. In re Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed.Cir.1987); In re Goodwin, 576 F.2d 375, 377, 198 USPQ 1, 3 (CCPA 1978). Obviousness is tested by “what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). But it “cannot be established by combining the teachings of the prior art to produce the claimed invention, absent some teaching or suggestion supporting the combination.” ACS Hosp. Sys., 732 F.2d at 1577, 221 USPQ at 933. And “teachings of references can be combined only if there is some suggestion or incentive to do so.” Id. Here, the prior art contains none. Instead, the Examiner relies on hindsight in reaching his obviousness determination. But this court has said, “To imbue one of ordinary skill in the art with knowledge of the invention in suit, when no prior art reference or references of record convey or suggest that knowledge, is to fall victim to the insidious effect of a hindsight syndrome wherein that which only the inventor taught is used against its teacher.” W.L. Gore, 721 F.2d at 1553, 220 USPQ at 312-13. It is essential that “the decisionmaker forget what he or she has been taught at trial about the claimed invention and cast the mind back to the time the invention was made ... to occupy the mind of one skilled in the art who is presented only with the references, and who is normally guided by the then-accepted wisdom in the art.” Id. One cannot use hindsight reconstruction to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention. C. Advantage Not Appreciated by the Pri- or Art. The Board erred not only in improperly combining the Eads and Warnick references but also in failing to appreciate that the appealed claims can be distinguished over that combination. A material limitation of the claimed system is that the conversion to nitric oxide occur in the range of 600°C to 1700°C." }, { "docid": "2850591", "title": "", "text": "was applied to all of the claims and references, a few examples are illustrative. There is no way one skilled in the art would have focused on an incomprehensible phrase in Fein, and ignored his disclosure of a rigid pawl; or would have focused on multiple teeth in Fein and Litwin, while ignoring how those reference structures function and the total absence of an abutment wall; or would have known that the teeth must be “in a straight line and equidistant from the surface of the abutment wall”; or would have learned from the Japanese and Litwin patents, which disclose manually releasable pawls, how to design the non-releasable pawls of the claimed inventions. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 USPQ 303, 311 (Fed.Cir.1983). Most importantly, nothing whatever in the prior art would have suggested to one skilled in the art how to produce a cable tie with a one-half pound insertion force and an 80 pound withdrawal force. The use of hindsight was the more egregious here, where, as discussed below, the court applied a subjective view based on “engineering principles and general principles of physics” and “the common experience of mankind” in the face of a record establishing that those “principles” and that “experience” did not for years suggest the claimed inventions to numerous earlier workers skilled in the art, including Denni-son’s engineers. This court and one of its predecessors have cautioned against the use of hindsight: It is difficult but necessary that the decisionmaker forget what he or she has been taught at trial about the claimed invention and cast the mind back to the time the invention was made (often as here many years), to occupy the mind of one skilled in the art who is presented only with the references, and who is normally guided by the then-accepted wisdom in the art. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d at 1553, 220 USPQ at 313. It is impermissible to first ascertain factually what appellants did and then view the prior art in such a manner as" }, { "docid": "23608949", "title": "", "text": "inquiries including: (1) the scope and content of the prior art; (2) the level of ordinary skill in the prior art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness. See Graham, 383 U.S. at 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ at 467; Miles Labs., Inc. v. Shandon Inc., 997 F.2d 870, 877, 27 USPQ2d 1123, 1128 (Fed.Cir.1993). We therefore review the ultimate determination of obviousness without deference to the Board, while examining any factual findings for clear error. See, e.g., In re Zurko, 142 F.3d 1447, 1459, 46 USPQ2d 1691, 1700 (Fed.Cir.) (en banc), cert. granted, — U.S. —, 119 S.Ct. 401, 142 L.Ed.2d 326 (1998). A Our analysis begins in the text of section 103 quoted above, with the phrase “at the time the invention was made.” For it is this phrase that guards against entry into the “tempting but forbidden zone of hindsight,” see Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 873, 228 USPQ 90, 98 (Fed.Cir.1985), overruled on other grounds by Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 46 USPQ2d 1097 (Fed.Cir.1998), when analyzing the patentability of claims pursuant to that section. Measuring a claimed invention against the standard established by section 103 requires the oft-diffieult but critical step of casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. See, e.g., W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 UPSQ 303, 313 (Fed.Cir.1983). Close adherence to this methodology is especially important in the case of less technologically complex inventions, where the very ease with which the invention can be understood may prompt one “to fall victim to the insidious effect of a hindsight syndrome wherein that which only the inventor taught is used against its teacher.” Id. Our case law makes clear that the best defense against the subtle but powerful attraction of a hindsight-based obviousness analysis is rigorous application of" }, { "docid": "8934599", "title": "", "text": "of events that the court finds to be factual, the court concludes Dr. Flege first conceived of and first reduced to practice claims 1 and 3, and Berryessa first conceived of and first reduced to practice claims 2, 4 and 7. The court finds the evidence clear and convincing that both Dr. Flege and Berryessa took steps to make their inventions public and enrich the art, and finds no evidence of abandonment, suppression or concealment of those inventions. Thus claims 1, 2, 4 and 7 are invalid for failure to meet the section 102(f) requirement that Amrine himself be their inventor. D. Obviousness, section 103 Under 35 U.S.C. § 103, RMI’s burden is to show that “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time to a person having ordinary skill in the art to which said subject matter pertains.” In re Keller, 642 F.2d 413, 425, 208 U.S.P.Q. 871, 881 (C.C.P.A.1981) (The test in determining whether a claimed invention would have been obvious is what the combined teachings of the references would have suggested to one of ordinary skill in the art.) Factors relevant to that test are: (a) the scope and content of prior art; (b) the differences between the prior art and the patented design; and (c) the level of ordinary skill in the art at the time the invention was made. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 556, 148 U.S.P.Q. 459, 467 (1966); Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1441-43, 221 U.S.P.Q. 97, 108 (Fed.Cir.1984). Obviousness is not established by “combining the teachings of prior art to produce the claimed invention, absent some teaching or suggestion that the combination be made.” In re Stencel, 828 F.2d 751, 4 U.S.P.Q.2d 1071 (Fed.Cir.1987); Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143, 227 U.S.P.Q. 543, 551 (Fed.Cir.1985); In re Corkill, 771 F.2d 1496, 1501-02, 226 U.S.P.Q. 1005, 1009-10 (Fed.Cir.1985). Secondary considerations such as commercial" }, { "docid": "23045133", "title": "", "text": "the district court underlying the obviousness determination will be overturned on appeal only if they are clearly erroneous. Panduit Corp. v. Dennison Mfg. Co., 810 F.2d at 1566, 1 U.S.P.Q. at 1596. The ultimate conclusion on obviousness, however, is a legal conclusion and is reviewed as such. Polaroid Corp. v. Eastman Kodak Co., 789 F.2d 1556, 1558, 229 U.S.P.Q. 561, 562 (Fed.Cir.), cert. denied, — U.S.-, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986). The obviousness standard, while easy to expound, is sometimes difficult to apply. It requires the decisionmaker to return to the time the invention was made. “The invention must be viewed not with the blueprint drawn by the inventor, but in the state of the art that existed at the time.... That which may be made clear and thus ‘obvious’ to a court, with the invention fully diagrammed and aided ...” by experts in the field, “may have been a breakthrough of substantial dimension when first unveiled.” Interconnect Planning Corp. v. Fell, 774 F.2d 1132, 1138, 227 U.S.P.Q. 543, 547-48 (Fed.Cir.1985). In this case we are convinced that the district court misapplied the obviousness standard. It has impermissibly used hindsight to reconstruct the claimed invention from prior art with the invention before it and aided by Uniroyal’s expert, rather than viewing the invention from the position of a person of ordinary skill at the time it was made. The court also erroneously analyzed and weighed secondary considerations of nonobviousness. (1) Hindsight “When prior art references require selective combination by the court to render obvious a subsequent invention, there must be some reason for the combination other than the hindsight gleaned from the invention itself.” Interconnect Planning Corp., 774 F.2d at 1143, 227 U.S.P.Q. at 551. See also Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 293, 227 U.S.P.Q. 657, 664 (Fed.Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986). Something in the prior art as a whole must suggest the desirability, and thus the obviousness, of making the combination. Lindemann Maschinenfabrik GmbH v. American Hoist and Derrick Co., 730 F.2d" }, { "docid": "23489857", "title": "", "text": "the Browning Hi-Power 9mm handgun, and the Llama Omni .45 caliber handgun. Of this prior art, the Colt 1911, a frame and magazine similar to the Browning Hi-Power, and a magazine similar to the Llama Omni magazine were before the Patent and Trademark Office during prosecution of the ’618 patent. The complete Llama Omni handgun was not. At the conclusion of the trial, the district court concluded that claim 1 would have been obvious to one of ordinary skill in the art and thus is invalid. The district court based its conclusion of obviousness on the prior art and the testimony of SGS’s expert, David Findlay. In determining obviousness, the court found that claim 1 differs from the prior art primarily in the means used to implement the mechanical transition between the handgun frame’s widened grip portion and its narrower top portion. These means are found in the claim limitation which refers to “intermediate face portions which are converging.” DISCUSSION Under 35 U.S.C. § 103, “[a] patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Obviousness may not be established using hindsight or in view of the teachings or suggestions of the inventor. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1551, 1553, 220 USPQ 303, 311, 312-13 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). Additionally, when determining obviousness, the claimed invention should be considered as a whole; there is no legally recognizable “heart” of the invention. W.L. Gore & Assocs., 721 F.2d at 1548, 220 USPQ at 309. In addition, such secondary considerations of nonobviousness as commercial success, long felt but unsolved needs, failures of others, and copying are considered in determining obviousness. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545 (1966); Avia Group Int’l," }, { "docid": "23608950", "title": "", "text": "grounds by Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 46 USPQ2d 1097 (Fed.Cir.1998), when analyzing the patentability of claims pursuant to that section. Measuring a claimed invention against the standard established by section 103 requires the oft-diffieult but critical step of casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. See, e.g., W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 UPSQ 303, 313 (Fed.Cir.1983). Close adherence to this methodology is especially important in the case of less technologically complex inventions, where the very ease with which the invention can be understood may prompt one “to fall victim to the insidious effect of a hindsight syndrome wherein that which only the inventor taught is used against its teacher.” Id. Our case law makes clear that the best defense against the subtle but powerful attraction of a hindsight-based obviousness analysis is rigorous application of the requirement for a showing of the teaching or motivation to combine prior art references. See, e.g., C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1352, 48 USPQ2d 1225, 1232 (Fed.Cir.1998) (describing “teaching or suggestion or motivation [to combine]” as an “essential evidentiary component of an obviousness holding”); In re Rouffet, 149 F.3d 1350, 1359, 47 USPQ2d 1453, 1459 (Fed.Cir.1998) (“the Board must identify specifically ... the reasons one of ordinary skill in the art would have been motivated to select the references and combine them”); In re Fritch, 972 F.2d 1260, 1265, 23 USPQ2d 1780, 1783 (Fed.Cir.1992) (examiner can satisfy burden of obviousness in light of combination “only by showing some objective teaching [leading to the combination]”); In re Fine, 837 F.2d 1071, 1075, 5 USPQ2d 1596, 1600 (Fed.Cir.1988) (evidence of teaching or suggestion “essential” to avoid hindsight); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 297, 227 USPQ 657, 667 (Fed. Cir.1985) (district court’s conclusion of obviousness was error when it “did not elucidate any factual teachings," }, { "docid": "9960030", "title": "", "text": "underlying factual determinations. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The Court is required to determine the scope and content of the relevant prior art, the differences between the prior art and the claimed subject matter, and the level of ordinary skill in the pertinent field of endeavor. Graham, supra, 383 U.S. at 18, 86 S.Ct. at 694. The Court must also consider any evidence of objective indicia of nonobviousness. Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1380, 231 U.S.P.Q. 81, 90 (Fed.Cir.1986). Against this background, the ultimate issue of obviousness is determined. 16. The obviousness of the inventions claimed in the patents in suit must be tested as of the time the inventions were made and it is necessary for the Court to cast its mind back to the time the claimed inventions were made. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 5 U.S. P.Q.2d 1434 (Fed.Cir.1988). The hypothetical person of ordinary skill in the art is presumed to know all of the teachings known in the art at the time the alleged inventions were made. In determining obviousness, the person of ordinary skill in the art is pictured as working in his shop with the prior art hanging on the walls around him. Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1576, 220 U.S.P.Q. 584, 591 (Fed.Cir.1984). Evidence that others simultaneously developed the inventions of the patents in suit suggests that the inventions of the patents would have been obvious to a person of ordinary skill in the art at the time the inventions were made. Lerner v. Child Guidance Products, Inc., 547 F.2d 29, 31, 193 U.S.P.Q. 329, 330 (2nd Cir.1976). Prior art references must be evaluated not only for what they explicitly state but for what they teach to a person of ordinary skill in the art. See, e.g., 35 U.S.C.A. Section 103. In addressing the subject of obviousness the relevant prior art should be addressed collectively to determine its teachings as a whole. These principles were recognized in EWP" }, { "docid": "2850592", "title": "", "text": "as discussed below, the court applied a subjective view based on “engineering principles and general principles of physics” and “the common experience of mankind” in the face of a record establishing that those “principles” and that “experience” did not for years suggest the claimed inventions to numerous earlier workers skilled in the art, including Denni-son’s engineers. This court and one of its predecessors have cautioned against the use of hindsight: It is difficult but necessary that the decisionmaker forget what he or she has been taught at trial about the claimed invention and cast the mind back to the time the invention was made (often as here many years), to occupy the mind of one skilled in the art who is presented only with the references, and who is normally guided by the then-accepted wisdom in the art. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d at 1553, 220 USPQ at 313. It is impermissible to first ascertain factually what appellants did and then view the prior art in such a manner as to select from the random facts of that art only those which may be modified and then utilized to reconstruct appellants’ invention from such prior art. In re Shuman, 361 F.2d 1008, 1012, 150 USPQ 54, 57 (CCPA 1966). In Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed.Cir.1983), this court noted the conflict with the statute, 35 U.S.C. § 103, when the test applied is whether the claimed invention would have been obvious, not to one skilled in the art when the invention was made, but “to a judge or other layman after learning all about the invention.” (2) Misinterpretation of the Claimed Inventions The statute requires that the subject matter of the claimed inventions be considered “as a whole”. 35 U.S.C. § 103. In the present case, the district court interpreted the claims of the ’146 patent as though they were drawn to “multiple teeth”, those of the ’896 patent as though they were drawn to a “ledge”, and those of the ’538 patent as though they were" }, { "docid": "23489858", "title": "", "text": "between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Obviousness may not be established using hindsight or in view of the teachings or suggestions of the inventor. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1551, 1553, 220 USPQ 303, 311, 312-13 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). Additionally, when determining obviousness, the claimed invention should be considered as a whole; there is no legally recognizable “heart” of the invention. W.L. Gore & Assocs., 721 F.2d at 1548, 220 USPQ at 309. In addition, such secondary considerations of nonobviousness as commercial success, long felt but unsolved needs, failures of others, and copying are considered in determining obviousness. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545 (1966); Avia Group Int’l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1564, 7 USPQ2d 1548, 1554 (Fed.Cir.1988). Obviousness must be established by clear and convincing evidence. Glaverbel Societe Anonyme v. Northlake Marketing & Supply, Inc., 45 F.3d 1550, 1555, 33 USPQ2d 1496, 1499 (Fed.Cir.1995). The ultimate determination of obviousness is a question of law, which we review de novo. Stiftung v. Renishaw PLC, 945 F.2d 1173, 1182, 20 USPQ2d 1094, 1102 (Fed.Cir.1991). The scope and content of the prior art, differences between the prior art and the claimed invention, the level of ordinary skill in the art, and objective evidence of secondary considerations of patentability are fact determinations. Id. What the prior art teaches and whether it teaches toward or away from the claimed invention also is a determination of fact. In re Bell, 991 F.2d 781, 784, 26 USPQ2d 1529, 1531 (Fed.Cir.1993) (citing Raytheon Co. v. Roper Corp., 724 F.2d 951, 960-61, 220 USPQ 592, 599-600 (Fed.Cir.1983), cert. denied, 469 U.S. 835, 105 S.Ct. 127, 83 L.Ed.2d 69 (1984)). Following a bench trial, we review the" }, { "docid": "5464501", "title": "", "text": "obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a). Obviousness under § 103 is a legal conclusion based on certain factual inquiries. DMI, Inc. v. Deere & Co., 802 F.2d 421, 425 (Fed.Cir.1986); see Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483 (Fed.Cir.1997). These factual inquiries include: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) secondary, objective considerations of nonobviousness including long-felt need, commercial success, or the failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); see Jones v. Hardy, 727 F.2d 1524, 1529 (Fed.Cir.1984). As is the case generally, whenever a § 103 obviousness test is being applied, it is critical to the analysis to deliberately guard against using hindsight or the teaching of the patent in suit in arriving at the conclusions. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051 (Fed.Cir.1988). The genius of invention is often a combination of known elements that in hindsight seems preordained. See Raytheon Co. v. Roper Corp., 724 F.2d 951, 961 (Fed.Cir.1983) (“[V]irtually every claimed invention is a combination of old elements.”) (quotation omitted). If identification of each claimed element in the prior art were sufficient to negate patentability, very few patents would issue. See In re Rouffet, 149 F.3d 1350, 1357 (Fed.Cir.1998). To prevent hindsight invalidation of patent claims, the law requires some “teaching, suggestion, or reason” to combine the cited references. Gambro Lundia AB v. Baxter Healthcare Corp., 110 F.3d 1573, 1579 (Fed.Cir.1997). The Federal Circuit instructs that [t]he obviousness standard, while easy to expound, is sometimes difficult to apply. It requires the decisionmaker to return to the time the invention was made. The invention must be viewed not with the blueprint drawn by the inventor, but in the state of the art that existed at the time .... That which may be made clear and thus ‘obvious’ to a court, with the" }, { "docid": "23272567", "title": "", "text": "components of the inventor’s combination, using the blueprint supplied by the inventor); Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1546, 221 USPQ 1, 7 (Fed.Cir.1984) (“As this court has held, ‘a combination may be patentable whether it be composed of elements all new, partly new or all old’ ’’) (citations omitted); W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1551, 220 USPQ 303, 312 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984) (individual references can not be “employed as a mosaic to recreate a facsimile of the claimed invention.”) The district court found that the technolo gy for the invention claimed in the ’375 patent existed at the time the invention was made, but correctly declined to engage in hindsight reconstruction of the claimed invention. Datapoint argues that the differences between the LINC and the ’375 invention are “trivial”. The district court observed that the prior art failed to teach the combination and its use as set forth in the ’375 patent, and stated that the invention’s “commercial success, although not determinative of the issue, is some indication that the ’375 patent was not [sic: invention would not have been] obvious”, the court referring to Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459 (1966). The prior art does not suggest the Irwin/Levine solution of the '375 invention to the batch data entry problem. As discussed in In re Rothermel, 276 F.2d 393, 397, 125 USPQ 328, 332, 47 CCPA 866 (1960), the nature of the problem “which persisted in the art’’, and the inventor’s solution, are factors to be considered in determining whether the invention would have been obvious to a person of ordinary skill in that art. See also, e.g., Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1556, 225 USPQ 26, 31 (Fed.Cir.1985) (the prior art must suggest to one of ordinary skill in the art the desirability of the claimed combination). Whether the changes from .the prior art are “minor”, as Datapoint argues, the changes must be" }, { "docid": "15945591", "title": "", "text": "that: Measuring a claimed invention against the standard established by section 103 requires the oft-difficult but critical step of casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.Cir.1999). We “cannot use hindsight reconstruction to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention.” In re Fine, 837 F.2d 1071, 1075, 5 USPQ2d 1596 (Fed.Cir.1988). Our ease law makes clear that the best defense against hindsight-based obviousness analysis is the rigorous application of the requirement for a showing of a teaching or motivation to combine the prior art references. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. “Combining pri- or art references without evidence of such a suggestion, teaching, or motivation simply takes the inventor’s disclosure as a blueprint for piecing together the prior art to defeat patentability — the essence of hindsight.” Id. “When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references.” In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.Cir.1998) (citing In re Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed.Cir.1987)). The same principle applies to invalidation. “Obviousness cannot be established by combining the teachings of the prior art to produce the claimed invention, absent some teaching or suggestion supporting the combination.” ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.Cir.1984). Although the suggestion to combine references may flow from the nature of the problem, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996), “[djefining the problem in terms of its solution reveals improper hindsight in the selection of the prior art relevant to obviousness,” Monarch Knitting Mach. Corp. v. Sulzer Morat Gmbh, 139 F.3d 877, 880, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). Therefore, “[w]hen determining the patentability" }, { "docid": "2850589", "title": "", "text": "going in different ways and did not arrive at the Cave-ney structure or anything substantially identical to it.” The present case establishes that, even on a journey to decision so well begun, a busy court may lose its way. Speculation on just which fork in the road led to error is fruitless. There were, moreover, numerous forks and numerous errors. (b) The Errors En route to its decision on obviousness, the district court was led to these errors: (1) It employed the benefit of hindsight. (2) It misinterpreted the claimed inventions. (3) It misevaluated the prior art. (4) It misconstrued its role. (5) It applied an improper and impossible standard of obviousness. (6) It gave too little weight to the objective evidence of non-obviousness and the real world story reflected in that evidence. (1) Hindsight The record compels the conclusion that the district court, having heard many days of testimony from the inventor Caveney, was unable to cast the mind back to the “time the invention was made.” 35 U.S.C. § 103. The court did not, as the statute requires, view the prior art from the perspective of one skilled in the art and uninformed by that testimony. Caveney described in detail the shortcomings of prior art cable ties and the superiority of cable ties constructed in accord with the claims in suit. In deciding the obviousness question, the district court looked to knowledge taught by the inventor Caveney, in his patents and in his testimony, and then used that knowledge against its teacher. The test is whether the subject matter of the claimed inventions would have been obvious to one skilled in the art at the time the inventions were made, not what would be obvious to a judge after reading the patents in suit and hearing the testimony. In the present case, for example, there is no way that one skilled in the art in 1961 and 1968 (necessarily unaided by knowledge of the patents in suit and Caveney’s testimony) would find in the prior art either a teaching or a suggestion of the claimed inventions. Though hindsight" }, { "docid": "11593871", "title": "", "text": "art to which said subject pertains. In determining obviousness, the person of ordinary skill in the art is pictured as working in his shop with the prior art hanging on the walls around him. Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1576 (Fed.Cir.1984). The obviousness test seeks to determine whether the hypothetical person of ordinary skill in the relevant art, familiar with all that the relevant art discloses and reasonably suggests, would find the claimed invention obvious. In re Sovish, 769 F.2d 738, 742 (Fed. Cir.1985). 12. In this case, a person of ordinary skill in the art is an individual having a college degree or equivalent experience in the field of cryogenic refrigeration design and who is mechanically inclined and familiar with refrigerated transport design. These persons are Messrs. David Burgener, Ralph Hill, Er- ling Mowatt-Larssen, Tom Maxwell, Mel McCracken and James S. Moe. 18. The issue of obviousness under § 103 is a question of law based on the Court’s factual determinations. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The Court must usually determine the scope and content of the relevant prior art, the difference between the prior art and the claimed subject matter, the level of ordinary skill in the pertinent field of endeavor and any objective evidence of non-obviousness. Graham, 383 U.S. at 18, 86 S.Ct. at 694. 14. Invalidation of a patent claim under § 103 requires a determination that it would have been obvious to combine prior art existing at the time the invention was made to produce the claimed subject matter. 35 U.S.C. § 103; Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1050-51 (Fed.Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). Courts are expressly prohibited from using the patent or invention at issue as a guide to combine bits and pieces of earlier designs and then reach a conclusion of obviousness. The decisionmaker must forget what he or she has been taught about the claimed invention and cast the mind back to the time the invention" }, { "docid": "22582389", "title": "", "text": "findings from being supported by substantial evidence. See id. Indeed, if a reasonable mind might accept the evidence as adequate to support the factual conclusions drawn by the Board, then we must uphold the Board’s determination. See id. B. Analysis A critical step in analyzing the patentability of claims pursuant to section 103(a) is casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. Close adherence to this methodology is especially important in cases where the very ease with which the invention can be understood may prompt one “to fall victim to the insidious effect of a hindsight syndrome wherein that which only the invention taught is used against its teacher.” Id. (quoting W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 313 (Fed.Cir.1983)). Most if not all inventions arise from a combination of old elements. See In re Rouffet, 149 F.3d 1350, 1357, 47 USPQ2d 1453, 1457 (Fed.Cir.1998). Thus, every element of a claimed invention may often be found in the prior art. See id. However, identification in the prior art of each individual part claimed is insufficient to defeat patentability of the whole claimed invention. See id. Rather, to establish obviousness based on a combination of the elements disclosed in the prior art, there must be some motivation, suggestion or teaching of the desirability of making the specific combination that was made by the applicant. See In re Dance, 160 F.3d 1339, 1343, 48 USPQ2d 1635, 1637 (Fed.Cir. =1998); In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed.Cir.1984). Even when obviousness is based on a single prior art reference, there must be a showing of a suggestion or motivation to modify the teachings of that reference. See B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996). The motivation, suggestion or teaching may come explicitly from statements" } ]

[ { "docid": "464358", "title": "", "text": "companies was to continue the insurance unless the execution of the mortgage was accompanied with suspicious circumstances. In the instant ease, action was brought at law for loss occasioned by fire, which occurred on the 17th of July, 1927. Defendant, among other defenses, alleged that the policy had been avoided by the unauthorized execution of the mortgage above mentioned. In reply, the plaintiff alleged that the omission to attach the appropriate rider had been due to mutual mistake, and asked that the policy be reformed and that the cause be transferred to the equity side of the court to have this issue determined in advance of the trial at law. By agreement of counsel, the evidence upon all issues, both legal and equitable, was heard together, and at its conclusion the court, passing upon the equitable issues, held and ordered that the policy should be reformed in accordance with plaintiff’s contention, after which the action at law was submitted to the jury and a verdict found in favor of plaintiff. The defendant thereupon submitted a motion for a new trial on two grounds: (a) Under the authorities there can be no reformation on the ground of mutual mistake in a case where the alleged mistake consists in the failure of the agent to keep his oral promise to attach a rider to an existing contract of insurance where the contract (policy) provides that it cannot be altered except by attaching the rider. (b) The evidence does not show mutual mistake. In their argument upon the motion, defendant’s counsel quote two provisions of the policy, as follows: “Unless otherwise provided by agreement in writing added hereto this company shall not’be liable for loss or damage to any property insured hereunder while incumbered by a chattel mortgage, and during the time of such incumbrance this company shall be liable only for loss or damage to any other property insured hereunder.” “No one shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement added hereto, nor" } ]

[ { "docid": "22947526", "title": "", "text": "days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim.” It is then provided that after judgment the party shall file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general as to the requisite amount of labor or improvements, and that the whole proceedings and the judgment roll shall be certified by the register to the Commissioner of the General Land Office, whereupon a patent shall issue for the claim. Thus the determination of the right of possession as between the parties is referred to a court of competent jurisdiction, in aid of the land office, but the form of action is not provided for by the statute; and, apparently, an action at law or a suit in equity would lie, as either might be appropriate under the particular circumstances, an action to recover possession when plaintiff is out of possession, and a suit to quiet title when he is in possession. In the case before us plaintiff averred that he was in possession, and framed his complaint in that aspect. Having instituted his suit as an equity cause, issues were made up and the case heard and disposed of and went to decree as in equity, and nearly a year afterwards he carried the case to the Supreme Court of the Territory and complained that the decree was fatally erroneous in that a jury trial was not had. But where a case is one of equitable jurisdiction only, the trial court is not bound to submit any issues of fact to a jury, and, if it does so, is at liberty to disregard the verdict and findings of the jury, “either by setting them or any of them aside, or by letting them stand, and allowing them more or less weight in its final hearing and decree, according to" }, { "docid": "464364", "title": "", "text": "in conflict with the overwhelming weight of authority. 4. While enforcing strictly the nonforfeiture provisions of policies in actions at law, the United States Supreme Court has given full recognition to the right of reformation of this class of contracts in all proper cases falling under the head of equitable relief. 5. In granting the equitable relief of reformation, the Supreme Court, as in the Nebraska ease cited by counsel, accords to state statutes defining the status and authority of resident agents full force and effect. 6. Both under the South Carolina statutes and under the authority given Dowling as shown by the undisputed testimony, he was the alter ego of the insurance company not only in the execution and delivery of the policy but also in attaching the rider or loss payable clause here in question. Corporations act only through authorized agents, and it is undisputed that Dowling’s power to do what he agreed to do was absolute and exclusive. And equity regards that as done which ought to have been done. 7. But it is earnestly urged by defendant’s counsel that the contract as originally issued was complete, and that while a mutual mistake or omission in it might have been corrected in a suit for reformation, this could not apply to a subsequent agreement because of the inhibitions of the policy and because the rights of the parties were fixed by the policy itself. The weight of that contention necessarily depends upon the extent of the agent’s authority. If his agreement had been to waive the forfeiture without attaching the rider, even under the authority invested in him under the South Carolina statutes, defendant’s contention might- be deemed well founded. It is not necessary here to determine, and we do not determine, the validity of the contention in such ease. Dowling’s agreement to attach the rider did not transcend his authority. He had full, unquestionable, and exclusive authority on behalf of the company to save the policy from forfeiture by fulfilling his agreement, and it was never within his intention or understanding that the policy was or" }, { "docid": "719979", "title": "", "text": "incontestable after two years from its date of issue except for non-payment of premium and except as to provisions and conditions relating to Disability and Double Indemnity Benefits.” And provided that it should take\" “effect as of the twenty-eighth day of April, nineteen hundred and twenty-four.” It will be noted that the equity suit was filed before, and the answer in the law action after, the expiration of the contestable period. The two cases were consolidated. The trial court dismissed the equity suit on the ground that the insurance company had an adequate remedy at law, and gave judgment on the pleadings for plaintiffs in the law action for the reason that the answer had not been filed until after the incontestable period had expired. The insurance company appealed. The appellate court held that, since the law action was brought by the assignees only, the insurance company had the right to bring an equity suit to protect itself against possible claims of the administra^ tor of the Andrews estate, and that, having initiated .the equity suit within the contestable period, the insurance company was thereafter entitled to the benefit of such contest in the equity suit, or in any other judicial proceedings respecting such policy, upon all and only the grounds of contest set up in such equity suit. It reversed and remanded both eases with instructions to try the law action first, and to dispose of the equitable issues in that action before taking up the legal issues. New York L. I. Co. v. Hurt (C. C. A.) 35 F.(2d) 92. Thereupon the case was transferred to the equity docket and heard on the merits. The court sustained the equitable defense, and entered a decree cancelling the policy. A copy of the April 28 application was attached to the policy and by express reference was made a part of the insurance contract. The provisions of the application are entitled to the same consideration as if they had been inserted at large in the policy. First National Bank of K. C. v. Hartford Fire I. Co., 95 U. S. 673," }, { "docid": "9366184", "title": "", "text": "NETERER, District Judge. Actions by beneficiaries for specific sums on a war risk insurance poliey, alleging necessary facts of total and permanent disability while in service, and death, etc. Defendant answers each complaint, admitting and denying, and by affirmative defense stating that $4,000 was converted into ordinary life policy and lapsed for default in premium, payments, and lapse for $6,000 of the policy, reinstatement on representations of physical and mental fitness, and lapse of reinstated policy. Replication is made to each answer that at the time of conversion the insured and the defendant’s officers, etc., were in error and ignorant of total and permanent disability at discharge, and by mutual mistake attempted to convert $4,000 of such policy, which act was without effect in law or equity. Reply is challenged, “no jurisdiction in the court for relief as no equitable defense appears in the answer.” Section 398, USCA, title 28: “In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. * * * Equitable relief respecting the subject matter * * * may thus be obtained by answer or plea. In ease affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. * * *» “The practice, pleadings, * * * in civil causes, * * * in the district courts, shall conform, * * * to the practice, pleadings, * * * in the courts of record of the State. * * *” Title 28, § 724, USCA. The pleadings in the state, aside from motions and demurrers, are: Complaint of plaintiff, answer by defendant, and reply of plaintiff. Pierce’s Code (Washington) §§ 271, 279, 383. The defendant by the affirmative defense in each case admits averments of plaintiff, but alleges new facts to obviate and repel their legal effect. The clear intent of the Congress was to obviate circuity of action, and that a tendered issue shall be determined in the one action. The issue in the instant case is liability upon a war" }, { "docid": "23267019", "title": "", "text": "Section of Insurance Law American Bar Association, Cleveland, Ohio, July 26, 1938) 15. “The company seems to think that by asking a declaratory judgment it became entitled to a trial in equity without a jury and that this is a sufficient reason for granting declaratory relief notwithstanding the institution of the action on the policy; but this is clearly not the case as the defense to determine which the declaratory judgment was sought was legal and not equitable in character. Where the issues raised in a proceeding for a declaratory judgment are of this nature, they must be tried at law if either party insists upon it, for the statute so provides. 28 U.S.C.A. § 400 (3). And, irrespective of this provision of the statute, it is clear that the right of jury trial in what is essentially an action at law may not be denied a litigant merely because his adversary has asked that the controversy be determined under the declaratory procedure”. Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321, 325. The learned District Judge intimated that he held the same views, saying: “It is suggested, without deciding, that on the question of notice, if at issue, defendant is entitled to a tria-l by jury”. Opinion filed October 29, 1937, Record, 71, 72. On November 2, 1936, the last brief of counsel was due. On November 18th, a petition for leave to amend the answer to include the facts of the New Plaven County suit -was filed and amendment allowed the same day. Ten days later petitioner-appellant replied to this amendment explaining that defendant Ress “was probably entitled to a defense”. On December 11, 1936, the learned trial judge entered a decree pro confesso (note the equitable form) against the non-resisting defendant-appellee Ress. This decree specifically adjudicated the merits of the notice question against him. If it were important to our decision, we might comment on the inconsistency of this action with subsequent developments in the same court. On October 29, 1937, the learned District Judge filed “findings of fact, conclusions of law, and opinion”." }, { "docid": "1624375", "title": "", "text": "35 U.S.Code, ‘Patents’ ” by Charles J. Zinn, Law Revision Counsel, Committee on the Judiciary, House of Representatives, U.S.Cong. and Adm.News 1952, at pg. 2522, and “Commentary on the New Patent Act” by P. J. Federico, Examiner-in-Chief, U. S. Patent Office, 35 U.S.C.A. § 56. This legislative history displays no intention to alter the settled case law under the patent statutes so that a court sitting in equity would not have the power to award incidental damages. There seems to be no indication that a jury trial will be involved in all actions where damages are sought. Rather, the revision notes state that there would be a right to jury trial when no injunction is sought. From this statement one may infer that where an injunction is sought, damages will be considered merely incidental to the jurisdiction of equity and no right to jury trial will be preserved. Defendants also contend that their “right” to jury trial cannot be destroyed by a subsequent tender of an equitable issue. In support of their contention they cite Cohen v. Globe Indemnity Company, D.C.E.D.Pa.1940, 37 F. Supp. 208, in which plaintiff sought leave to file a petition for reformation of contract in an action at law upon a burglary insurance policy. The district court upheld defendant’s demand for a jury trial, despite the interjection of the equitable issue. Plaintiffs have distinguished this case sufficiently by showing that it involved two separate causes for reformation of a contract and breach of a contract that could be heard before the court on the reformation cause and subsequently before a jury on the breach of contract cause. In the case at bar the only cause is patent infringement, which is indivisible and must be heard by the court in equity if legal and equitable issues are to be joined. Defendants further maintain that equity cannot retain jurisdiction if equity jurisdiction is not obtained in good faith and that they question the motive for plaintiffs’ injunction demand as being other than an effort to obtain a striking of the jury demand. As indicated earlier, the court considers" }, { "docid": "13394140", "title": "", "text": "HUTCHESON, Circuit Judge. Appellant, as most men do, not before but . after he had sustained a loss by fire, read his policy. From such reading learning that there were things in it which he had not supposed were there, he filed his bill in equity to reform the policy, and to recover upon it as reformed. The things amiss in the policy as written which he sought by his reformation suit to correct were: (1) That the pol-iey, though originally written in his name, had, by an indorsement made without his consent, been written in his wife’s name; (2) that the concurrent insurance clause, instead of providing concurrently for $18,000 on the dwelling and $5,000 on the furniture and fin-ishings, really provided for only $16,000 on the dwelling and $3,000 on the furniture and finishings. He set up his loss, pleaded the filing of proofs of loss, the denial by the company of all liability under the policy, that he had requested payment of the insurance, and that he had done every act and thing necessary to entitle him to receive payment. Further, by way of anticipation of defenses which he thought would be, and which sure enough were, urged against him, appellant declared, first, as to the provision of the pol-iey. that, if foreclosure proceedings he commenced with knowledge of the assured, unless a counter indorsement appeared on the policy the policy would be void, that he had no knowledge that such a suit had been brought against him; and, second, that though the company was threatening to, they ought not to be permitted to assert against him the provision of the poliey that “the entire poliey shall be void if the subject of insurance be personal property and be or become encumbered by a chattel mortgage,” unless consent is indorsed upon the poliey, for that there was only one mortgage on the property, and this upon the building and the furniture jointly; that the company through its lawful agent was not only fully advised of, but had fully consented to it by the indorsement on the policy" }, { "docid": "2351711", "title": "", "text": "141, 50 L. Ed. 300; Gilbert v. Hopkins (C. C.) 171 F. 704. But that would give the plaintiff here no relief, sinee it could not recover in a law action; nor require Gruber to test his title in a law action. “The real dividing line between law and equity under the Constitution is the line between controversies triable by jury under the common law of England and those not so triable as a matter of right. Root v. Railway Co., 105 U. S. 189, 206, 26 L. Ed. 975. The District Court is a court of law and equity. The judge performs his functions as a judge of both courts concurrently. The only mechanical difference is separate dockets and records. Juries are impaneled and used in both courts, heretofore in the court of equity to enlighten the conscience of the judge as to an issue of fact. Equity rule 23 (198 P. xxiv, 115 C. C. A. xxiv) now provides: “ ‘If in a suit in equity a matter ordinal rily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court.’ “We think this rule means that, where in an equity ease a matter triable by jury arises, the court shall not refuse to try it, and shall not go through the form of sending it to the law side of the court, but shall determine it according to all the principles applicable — • one of which is the right of trial by jury. Under rule 22, if the ease is essentially a law case improperly brought in equity, it must be transferred to the law side. Under rule 23, if the case, looked at as a whole, is an equity ease, but a. question arises in it triable by jury, a jury trial is held to settle the legal issue without transfer. When the legal issue has been settled by the verdict of the jury, the court adjudicates the equitable issues in the light of the verdict.”" }, { "docid": "11983990", "title": "", "text": "had the'action been brought at common law or in equity, as the case may be The trial court was of opinion that some issues of fact were essentially equitable in nature and others were essentially legal in nature, and disposed of the allegations of fraud and collusion upon the theory that they were equitable in nature and eventually submitted to the jury the question of false statements and failure to cooperate on the theory that these issues of fact were legal in nature. While the subject is not without difficulty (see Borchard on Declaratory Judgments, p. 119) it is clear we think that issues of fact are neither legal nor equitable but that their disposition by the court or jury, as the case may be, depends upon the setting in which the issues are framed. If the issues are raised in an action at law the right to a jury trial obtains and if raised in an action in equity it may be determined by the court without a jury, or the court may call to its aid a jury whose verdict is advisory. In the case at bar we have an appellant who has executed an insurance policy and who anticipates that an action will be brought upon that insurance policy by the person insured or by an injured person subrogated to his right. The insurance company claims that it has a just defense to this action arising out of the conduct of the insured person and also of the injured person. The issue of fraud and collusion for the purpose of obtaining a judgment by the injured person against the insured is in legal effect no more than an allegation of non-cooperation. In the absence of the insurance policy and its agreement for cooperation the insured would have a perfect right to confess judgment in favor of the injured person regardless of whether or not there was any legal liability for the injury. It follows from what we have said that we simply have a situation herein where a party who has issued a policy of insurance anticipates" }, { "docid": "300991", "title": "", "text": "declaration of trust signed by the defendant to the effect that he held the land for the complainant, so that there was no way in which the defendant could have enforced his equity by an action or proceeding at law or in chancery; and yet, when the complainant asked a court of equity to compel the defendant to convey the title, the Supreme Court of Illinois conditioned that relief with the requirement that the complainant should do equity by paying back to the defendant the money which he had advanced to improve the property, with interest upon it. In Booth v. Hoskins, 75 Cal. 271, 276, 17 Pac. 225, Booth brought a suit to quiet title, and to set aside a deed to Hoskins which had been given to secure the payment of money advanced by him to the complainant. The claim to recover this money and the suit to foreclose the mortgage evidenced by the debt were both barred by the statute of limitations of California. Nevertheless the court required the plaintiff to do equity. It required him to pay the outlawed debt as a condition of granting him the equitable relief he sought. Our conclusion is that the statute of limitations constituted no bar to the right of the court to condition the relief which the trust company asked with the payment of the money which Hutchison had advanced to pay a part1 of the purchase price of this land. For the same reasons which make the statute of limitations ineffective here, the laches-of the defendant' constitutes no bar to the action of the court below. Moreover, the defendant is not fairly chargeable with laches in any degree, because he had a first mortgage upon the legal title to this land, and it was only by an appeal to equity that either the railroad company or the trust company could deprive him of his paramount lien. He was content. He needed no relief from a court of equity, and he sought none. Non constat that the railroad company or the trust company would ever endeavor to- enforce their" }, { "docid": "22241194", "title": "", "text": "RALPH B. GUY, Jr., Circuit Judge, Plaintiff, J.C. Wyckoff & Associates, Inc. (Wyckoff), commenced this suit in order to recover proceeds under a fire insurance policy issued by defendant, The Standard Fire Insurance Company (Standard Fire). The policy named intervening plaintiff, Second National Bank of Saginaw (the Bank), a lender of money to Wyckoff, under a loss payable clause. Standard Fire refused to pay proceeds to either the Bank or Wyck-off, claiming that Wyckoff committed arson and fraud and false swearing, thus barring recovery under the policy by either the Bank or Wyckoff. Standard Fire maintained that, because the Bank was named under a loss payable endorsement rather than a standard mortgage endorsement, the Bank’s right to recover was contingent upon Wyckoff s right to recover. After a trial on the issue of Standard Fire’s liability to Wyckoff, the jury rendered a verdict against Standard Fire on the arson defense and in favor of Standard Fire on the fraud and false swearing defense. Upon cross motions for summary judgment filed by the Bank and Standard Fire, the district court held that the jury verdict did not bar recovery by the Bank for outstanding loans made to Wyckoff and secured by real estate and personal property covered under the policy. The Bank’s claim regarding the amount of judgment was subsequently resolved pursuant to a stipulation entered into between the Bank and Standard Fire. Wyckoff raises numerous claims of error on appeal: (1) the trial court erred in denying Wyckoff’s motions for directed verdict and judgment notwithstanding the verdict, as proof of reliance is required to sustain a claim of fraud and false swearing in Michigan, and Standard Fire admits that there was no reliance; (2) the issue of whether reliance is a necessary element of fraud and false swearing should have been certified for decision to the Michigan Supreme Court; (3) even assuming that proof of reliance is not required, the district court should have granted plaintiff’s motion for judgment notwithstanding the verdict because there was not sufficient evidence of fraud and false swearing to submit the issue to the jury;" }, { "docid": "9366185", "title": "", "text": "side of the court. * * * Equitable relief respecting the subject matter * * * may thus be obtained by answer or plea. In ease affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. * * *» “The practice, pleadings, * * * in civil causes, * * * in the district courts, shall conform, * * * to the practice, pleadings, * * * in the courts of record of the State. * * *” Title 28, § 724, USCA. The pleadings in the state, aside from motions and demurrers, are: Complaint of plaintiff, answer by defendant, and reply of plaintiff. Pierce’s Code (Washington) §§ 271, 279, 383. The defendant by the affirmative defense in each case admits averments of plaintiff, but alleges new facts to obviate and repel their legal effect. The clear intent of the Congress was to obviate circuity of action, and that a tendered issue shall be determined in the one action. The issue in the instant case is liability upon a war risk insurance contract. If the defendant by answer alleges new matter in bar, the plaintiff must have the like privilege to challenge-the new matter by equitable defense thereto to determine the issue of liability upon the insurance contract without changing the nature of the action, to save to the plaintiff the right of a trial by jury given by the Seventh Amendment. Unless the equitable defenses may be asserted, the plaintiffs will be required to move a stay of proceedings in the instant eases and institute independent actions in equity to determine the equitable claims, or amend their complaints, praying equitable relief conforming the pleading by pertinent allegations, and have the causes transferred to the equity side of the court, and, upon the court of equity assuming jurisdiction, under Equity Rule 23 (28 USCA § 723), it will maintain them to the end of the litigation, and the plaintiffs be denied the right of trial by jury. Taft, Chief Justice, in Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, at page 242," }, { "docid": "12362226", "title": "", "text": "558, 565, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990)). “The right to a jury trial extends to causes of action created by Congress.” Id. In determining whether a Seventh Amendment right to jury trial exists, the court examines “both (1) ‘the nature of the issues involved,’ to determine if they would have historically been brought in a court of law or a court of equity, and (2) ‘the remedy sought,’ to determine whether it is legal or equitable in nature.” Id. The second prong is the more important inquiry. Id. In this case, plaintiff filed her claims under 29 U.S.C. § 1132(a)(1)(B) and (a)(2), alleging that LINA breached the accidental death,and dismemberment policy at issue^cffd violated fiduciary duties in denying her claim for benefits. In her prayer for relief, plaintiff seeks “a declaration regarding LINA’s noncompliance with the minimum requirements of ERISA and other federal and state laws in connection with the aforesaid denial of benefits,” “benefits payable under the aforesaid insurance policy, in the amount of [$500,-000.00], to reimburse Termini for payments that Termini has been entitled to receive,” and “further legal and equitable relief as the Court deems appropriate.” Am. Compl. at 8. Plaintiffs claim for the wrongful denial of benefits was brought under 29 U.S.C. § 1132(a)(1)(B). Under a Seventh Amendment analysis, this court has previously held that a “plaintiffs suit to recover what is due and owing under a benefits plan essentially presents an action at law to recover a legal entitlement.” Lamberty, 329 F.Supp.2d at 745. As presented here, the nature of this particular claim is legal, as it is similar to a breach of contract claim. Nonetheless, in this action, as described above, plaintiff seeks both legal and equitable relief. Specifically, in her amended complaint, plaintiff asks this court to first declare that LINA has failed to comply with the terms of the policy and then to award her $500,000.00, the value of the policy. See Am. Compl. at 8. Because such a declaration is necessary for plaintiff to recover the plan benefits, plaintiffs claim for monetary relief is inextricably intertwined with equitable relief." }, { "docid": "23352987", "title": "", "text": "was allowed to enjoin a legal determination of a controversy. This case involved a life insurance policy containing a clause making the policy incontestable after two years. After the insured’s death within the two-year period the beneficiary brought an action at law to recover on the policy. The insurance company then sued in equity for a declaration that the policy was invalid due to misrepresentations made by the insured. ' The beneficiary moved for dismissal of the equity suit arguing that the remedy at law was adequate, and the district court dismissed the suit. On appeal the dismissal was reversed. The court held that the remedy at law was not adequate since the plaintiff at law (the beneficiary) could take a voluntary non-suit after the incontestable period had passed and then initiate a new suit in which the defendant would be barred from asserting its defenses. The insurance company could therefore be irreparably harmed by allowing litigation of the dispute to proceed at law rather than at equity. . The opinion of the Supreme Court stated-: “Inadequacy of remedy and irreparable harm are practical terms, however. As such their existence today must be determined, not be precedents decided under discarded procedures, but in the light of the remedies now made available by the Declaratory Judgment Act and the Federal Rules. “Viewed in this manner, the use of discretion by the trial court under Rule 42(b) to deprive Beacon of a full jury trial on its counterclaim and cross-claim, as well as on Fox’s plea for declaratory relief, cannot be justified. Under the Federal Rules the same court may try both legal and equitable causes in the same action. Fed.Rules Civ.Proc., 1, 2, 18. Thus any defenses, equitable or legal, Fox may have to charges of antitrust violations can be raised either in its suit for declaratory relief or in answer to Beacon’s counterclaim. On proper showing, harassment by threats of other suits, or other suits actually brought, involving the issues being tried in this case, could be temporarily enjoined pending the outcome of this litigation. Whatever permanent injunctive relief Fox" }, { "docid": "22178223", "title": "", "text": "relied upon by the plaintiff in error, is not in conflict with this conclusion. That was an action by the Government to recover damages for the fraudulent acquisition of certain public lands. A prior suit had been brought in equity to cancel thq patent, but the defendant’s .answer showed that the land had been conveyed to persons not made parties to the suit. The Government thereupon promptly dismissed its suit in equity and, on the same day, commenced the action at law for damages. If, in the instant case, a like course had been followed upon the coming in of the defendant’s answer pleading the statute of limitations, the case just referred to would have been in point.. Northern Assurance Co. v. Grand View Building Association, 203 U. S. 106; William W. Bierce, Limited, v. Hutchins, 205 U. S. 340; and Southern Pacific Co. v. Bo- gert, 250 U. S. 483, cited by plaintiff in error in support of its contention, are all distinguishable from the case now under consideration. In Northern Assurance Co. v. Grand View Building Association, supra, an action at law had been brought to enforce an insurance policy, but it was held that no recovery could be- had on the policy as it stood. Thereupon a suit was brought to reform the policy and enforce it as reformed. It was held that there was no inconsistency between these two remedies; and clearly there was not,, since .both cases proceeded in affirmance of the contract. In William W. Bierce, Limited, v. Hutchins, supra, there had been a conditional sale. Plaintiff'first undertook to enforce a lien upon the property grid later brought an action in replevin; It was held there was no election because plaintiff could not enforce a lien upon property to which.it had title. This Court said: “It [appellant] could not obliterate the condition and leave the contractdn force. It may be that it had an election to avoid the contract altogether, but, if so, it did not attempt to do it. ' It insisted on the contract as the ground of its claim to a" }, { "docid": "21347240", "title": "", "text": "fraud, alleging that the assured had obtained the policies by knowingly making false representations, consisting of untrue answers to questions propounded to him in his written application for the policies, and asked a decree of- rescission. Its motion for trial on the equitable issues tendered by the cross-bill, before trial of the legal issues,-was denied. The action on the policies was brought, and the cross-bill was filed within the contestable period. Such also was the situation in the Adamos and «Enelow Cases. Respondent had filed affidavits of defense raising this same equitable , .issue, and asked ■ that this equitable issue should be heard in advance of the trial by jury at law of any purely legal issues. The Supreme Court, reversing the decree of the Circuit Court of Appeals, held that this summary procedure would not lie “because the defense is one which is completely available in the action at law” seasonably brought within the contestable period. In the opinion in the Enelow Case Mr. Chief Justice Hughes used this significant language: “The instant case is not one in which there is-resort to equity for cancellation of the policy during the life of the insured arid no opportunity exists to contest liability at law. Nor is it a case where, although death - may have occurred, action has not been brought to recover .upon the policy, and equitable relief is sought to protect the insurer against loss of its defense by the expiration of the period after which the policy by its terms is to become incontestable.” This states the distinction between the foregoing cases and that now under consideration. This action was brought by the insurer during the life of the insured and within the contestable period shortly thereafter to expire. No action ' had been brought to recover upon any provision of the policy. For the reasons stated, we conclude that the decree below should be affirmed, and- it is so ordered." }, { "docid": "13394141", "title": "", "text": "thing necessary to entitle him to receive payment. Further, by way of anticipation of defenses which he thought would be, and which sure enough were, urged against him, appellant declared, first, as to the provision of the pol-iey. that, if foreclosure proceedings he commenced with knowledge of the assured, unless a counter indorsement appeared on the policy the policy would be void, that he had no knowledge that such a suit had been brought against him; and, second, that though the company was threatening to, they ought not to be permitted to assert against him the provision of the poliey that “the entire poliey shall be void if the subject of insurance be personal property and be or become encumbered by a chattel mortgage,” unless consent is indorsed upon the poliey, for that there was only one mortgage on the property, and this upon the building and the furniture jointly; that the company through its lawful agent was not only fully advised of, but had fully consented to it by the indorsement on the policy of a New York standard mortgage clause in favor of Austin, the mortgagee named in the mortgage. Not to be outdone by the .plaintiff, the defendant not only interposed the defenses which the plaintiff had anticipated, but went him one better, basing a sweeping defense to the suit upon the allegation that plaintiff had not, as required by the policy, within the sixty-day period therein fixed, filed his proofs of loss. On these pleadings the cause went to trial, and on full proof the court found that the rider, of date May 11, 1929, “Poliey should read name of assured Dora C. Bennett,” was placed on the poliey wrongfully and without the knowledge or authority of plaintiff, and that he was entitled in this respect, therefore, to have the relief asked by way of reformation or cancellation so as to reinstate himself as the insured. The court, ruling upon the authority of Harris v. N. British & Mercantile Ins. Co. (C. C. A.) 30 F.(2d) 94, that the filing of proofs of loss is an" }, { "docid": "1373348", "title": "", "text": "WILLIAM C. COLEMAN, District Judge. This is an appeal from a judgment of the District Court for the Eastern District of South Carolina in a suit on a policy of health and accident insurance issued to the husband of the appellant (hereinafter called the plaintiff) by the Monarch Accident Insurance Company of Springfield, Mass., appellee (hereinafter called the Company). The suit was originally brought in the court of common pleas for Dillon county, S. C., and from there removed to the United States Court, whore, the case being tried before a jury, at the close of its testimony, the Company moved for a directed verdict in its favor except as to the sum of $25, as to which it consented to a verdict for the plaintiff. The motion was granted, and it is from this action of the lower court in directing a verdict that this appeal is taken. There are six assignments of error. The first three raise the question whether the trial court erred in directing a verdict for the Company as to the death benefit under the policy, since, as claimed, it was indebted at the time to the plaintiff in a sum sufficient to pay the overdue quarterly premium on the policy, and thereby to avoid a forfeiture of the policy which it was required to do as a matter of law; or whether the court should at least have submitted to the jury the question as to whether any such amount was then due and owing. The three remaining assignments of error question the correctness of the court’s ruling in limiting to $25 plaintiff’s right to recover sick benefits. The material facts are as follows: On November 15, 1926, the Company issued to plaintiff’s husband, who was engaged in the grocery business, a health and accident insurance poliey with plaintiff as beneficiary, in consideration of an annual premium of $65, payable in quarterly installments of $16.25 on the 1st days of November, March, June, and September. The principal sum of the poliey was $5,000, the weekly accident indemnity $25, and a similar weekly indemnity for" }, { "docid": "15646099", "title": "", "text": "Defendants’ cross-petition was a proper pleading in the state court under section 466, supra. It was likewise a proper pleading in the Federal court under section 398, 28 US CA, which provides for equitable defenses and equitable relief in actions at law. We conclude that both under section 466, supra, and section 398, supra, the defendants, having no adequate remedy at law, had a right to file their cross-petition to quiet title. The intervening petitions were proper pleadings to defendants’ cross-petition. Upon the filing of the intervening petitions in the state court, defendants’ cross-petition and those filed by others became proper pleadings thereto. Whether such intervening petitions were properly filed is immaterial, because the Hosey-Guthrie Group raised no objection thereto until long after the filing of defendants’ cross-petition. New parties may be brought in when necessary for the determination of issues properly raised by an equitable cross-petition filed in an ejectment action. City of Eureka v. Gates, 120 Cal. 54, 52 P. 125; Klinker v. Schmidt, 106 Iowa, 70, 75 N. W. 672. It is well settled that when an equitable defense is interposed to an action at law in a Federal court, the cause should be transferred to the equity docket, and the equitable issues first disposed of as in a court of equity; then, if any issue at law remains, transferred to the law docket for trial by jury. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232; American Mills Co. v. American Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306; Fish v. Kennamer (C. C. A. 10) 37 F.(2d) 243; Home Ins. Co. v. Sullivan Mach. Co. (C. C. A. 10) 64 F.(2d) 765. We therefore hold that the trial court properly denied the motions to strike, and properly tried the equitable issues in advance of the issues of law. Y. The Admissibility and Effect of Certain Evidence. The enrollment records of various Indians made by the Dawes Commission and certain tribal rolls were admitted in evidence. In the briefs divergent" }, { "docid": "2351684", "title": "", "text": "to be further encroached upon. It is further stated that complainant made formal objection to the construction of such permanent improvements before the work had been- in any way substantially proceeded with and before any of the permanent improvements had been laid. It is alleged that the portion of the right of way now sought to be encroached upon is and soon will be needed for necessary railroad purposes, and that the trespass and encroachment by defendants will cause permanent and irreparable injury, will cast -an illegal cloud upon the title of the complainant unless enjoined by the court, and that there is no plain and adequate remedy at law to prevent the threatened injuries. Defendants’ answers embrace complete denials of complainant’s title to any right of way in the premises in question, set up in themselves paramount title acquired from the actual owners of the property, and further allege that, if the complainant ever had title to its alleged right of way, it has been lost by adverse possession and by acts constituting estoppel, and further that the permanent improvements sought to be enjoined have already been substantially completed. It will be observed that the answers do not challenge the sufficiency of the bill to present a proper cause for equitable relief, nor is it claimed in such answers that the complainant has a plain and adequate remedy at law. Indeed, it was conceded at the hearing upon application for a temporary injunction that the averments of the bill standing alone present a proper case for equitable jurisdiction. And there can be no doubt that, where a railroad company has acquired, and in the exercise of its franchise is in possession of, a right of way over real estate, the proper procedure to avoid encroachments such as are herein alleged is by bill in equity. Upon and after the filing of the bill, complainant made application for, and procured from the court, a rule requiring the defendants to show cause why, pending the determination of the suit, a temporary injunction should not be granted against the construction of the" } ]

[ { "docid": "23008716", "title": "", "text": "property interest from arbitrary or wrongful deprivation was adequately protected by sequestration procedures that: (1) required a creditor to file an affidavit stating “specific facts” entitling him to sequestration; (2) mandated that the writ was issuable only by a judge; (3) required the creditor to file a bond to protect the debtor from all damages in the event the sequestration was shown to have been wrongful; (4) entitled the debtor to dissolve the sequestration by filing his own bond; and (5) entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued. That the Fuentes analysis continued to retain some vitality was demonstrated by a decision filed two days after Mitchell. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), the Court sustained the constitutionality of Puerto Ri-can statutes providing for forfeiture, without prior notice or hearing, of vessels used for unlawful purposes, by applying the “extraordinary situation” exception of Fuentes. The requiem for Fuentes’ “demise” soon appeared to have been chanted prematurely. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (Stewart, J., concurring). The Court in Di-Chem not only again held a garnishment statute unconstitutional, but appeared, to some extent, to resuscitate Fuentes. See 419 U.S. at 609-614 (Powell, J., concurring). Procedural Due Process, note 5 supra, 88 Harv.L.Rev. at 1514. The Georgia procedures were held constitutionally insufficient because (1) they allowed a writ of garnishment to issue on affidavit by a creditor or his attorney containing only conclusory allegations; (2) the writ was issuable by the court clerk without participation by a judge; (3) the garnishment could be dissolved only by the filing of a bond, which continued to deprive defendant of the use of some property; and (4) there was no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment. 419 U.S. at 607, 95 S.Ct. 719. Although" } ]

[ { "docid": "23299642", "title": "", "text": "because they denied “the right to a prior opportunity to be heard before chattels are taken from their possessor”. 407 U.S. at 96, 92 S.Ct. at 2002. In Mitchell, however, the Supreme Court held that the Louisiana sequestration statute comported with due process even though it provided no pre-seizure notice and opportunity to be heard. The Court explained that the Louisiana procedure “effects a constitutional accommodation of the conflicting interests of the parties” because, among other things, the creditor was required to obtain prior judicial authorization for the attachment. 416 U.S. at 606, 617 & n.12, 94 S.Ct. at 1900. Finally, in Di-Chem the Court struck down the Georgia garnishment scheme because, unless the debtor posted a counterbond, it placed the garnished property “totally beyond use during the pendency of the litigation on the alleged debt, all by a writ of garnishment issued by a court clerk . . . without participation by a judicial officer”. 419 U.S. at 606, 95 S.Ct. at 722. The Court stressed that the Georgia scheme was unlike the Louisiana procedure upheld in Mitchell, which allowed issuance of a writ of sequestration “only by a judge upon the filing of an affidavit going beyond mere conclusory allegations and clearly setting forth the facts entitling the creditor to sequestration”. 419 U.S. at 607, 95 S.Ct. at 722. ' It seems clear, then, that due process requires that a prejudgment seizure be authorized by a judge who has discretion to deny issuance of the appropriate writ. Because the Georgia prejudgment attachment scheme does not provide this procedural guarantee, we hold that it is facially unconstitutional. By so holding, we need not address Johnson’s other facial attacks on the constitutionality of the attachment procedure. Johnson must be accorded a trial on the issue of damages. In addition, under our resolution of the class action issue, the declaratory judgment sought by Johnson shall be issued in favor of the class of all persons who have had or will have property seized under the Georgia prejudgment attachment scheme. The cause is REVERSED AND REMANDED to the district court for further" }, { "docid": "23388366", "title": "", "text": "household goods, a refrigerator, range, stereo, and washing machine. The case is not directly in point here, but supports a conclusion that pre-attachment notice and hearing are not required in our ease. In Calero-Toledo v. Pearson Yacht Leasing Co., supra, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, the Court again applied the “extraordinary situation” analysis of Snia-dach and Fuentes and upheld the summary seizure and subsequent forfeiture, initiated by government officials, of a yacht that was allegedly used in an illegal smuggling scheme. Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751, the Court struck down a Georgia garnishment statute. Under the Georgia statute, a writ of garnishment was issuable by the court clerk after receipt of an affidavit of a creditor or his attorney. The affidavit had only to contain conclusory allegations, and the statute did not provide for an early post-garnishment hearing. The Court, relying on Fuentes, stated that [bjeeause the official seizures had been carried out without notice and without opportunity for a hearing or other safeguard against mistaken repossession they were held in violation of the Fourteenth Amendment, [emphasis supplied]. 419 U.S. at 606, 95 S.Ct. at 722. We conclude that the foregoing decisions do not require that we hold Supplemental Rule B invalid because it does not provide for pre-attachment notice and hearing. To so hold would negate the two reasons why the “old process” now embodied in the rule was developed and is still needed. b. Lack of judicial participation in issuance of the writ. In Mitchell, supra, the Court, in upholding the Louisiana procedure, remarked that the Court had previously approved prejudgment attachment effected by creditors “without notice, hearing or judicial order,” 416 U.S. at 613, 94 S.Ct. at 1903. This is such a case. In Mitchell, the Court relied, in part, on the fact that, under the Louisiana procedure, a judge passed upon the sufficiency of the verified petition or affidavit, 416 U.S. at 616, 94 S.Ct. at 1904. Supplemental Rule B does not contain such a requirement. Nevertheless, we" }, { "docid": "22683882", "title": "", "text": "did not put the seizure beyond scrutiny under the Due Process Clause. “The Fourteenth Amendment draws no bright lines around three-day, 10-day, or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause.” Id., at 86. Although the length or severity of a deprivation of use or possession would be another factor to weigh in determining the appropriate form of hearing, it was not deemed to be determinative of the right to a hearing of some sort. Because the official seizures had been carried out without notice and without opportunity for a hearing or other safeguard against mistaken repossession, they were held to be. in violation of the Fourteenth Amendment. The Georgia statute is vulnerable for the same reasons. Here, a bank account, surely a form of property, was impounded and, absent a bond, put totally beyond use during the pendency of the litigation on the alleged debt, all by a writ of garnishment issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer. Nor is the statute saved by the more recent decision in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). That case upheld the Louisiana sequestration statute which per mitted the seller-creditor holding a vendor’s lien to secure a writ of sequestration and, having filed a bond, to cause the sheriff to take possession of the property at issue. The writ, however, was issuable only by a judge upon the filing of an affidavit going beyond mere conclusory allegations and clearly setting out the facts entitling the creditor to sequestration. The Louisiana law also expressly entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued. The Georgia garnishment statute has none of the saving characteristics of the Louisiana statute. The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the" }, { "docid": "16687886", "title": "", "text": "of this court that is barely two years old, without pointing to any change in either societal perceptions or basic constitutional understandings that might justify this total disregard of stare decisis.\"). Nevertheless, the Court distinguished the Louisiana provision from the statutes struck down in Fuentes, and found that the Louisiana law was redeemed by several alternative safeguards. First, the writ of sequestration was authorized “ ‘only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts’ shown by verified petition or affidavit.” Mitchell, 416 U.S. at 616, 94 S.Ct. at 1904. Second, in the particular district involved, the requisite showing had to be made to a judge, and only a judge was authorized to issue the writ. Id. Third, the statute provided that “[t]he defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued.” Id. at 622, 94 S.Ct. at 1907. The Supreme Court interpreted this section to provide for an immediate hearing to determine whether the writ was appropriately issued. Id. at 618, 94 S.Ct. at 1905. Finally, the debtor was protected by a provision in the statute which allowed for damages for wrongful issuance of the writ, and for attorneys’ fees, “whether the writ is dissolved on motion or after trial on the merits.” Id. at 617, 94 S.Ct. at 1905. In the fourth Supreme Court case, North Georgia Finishing v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the court struck down a Georgia attachment statute which did not provide several of the safeguards approved of in Mitchell. First, the Georgia law provided the following with respect to the affidavits: “[t]he writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts. The affidavit, like the one filed in this case, need only contain conclusory allegations.” Id. at 607 (citation omitted). Second, the" }, { "docid": "16554086", "title": "", "text": "at 1900-01. In this case, as required by statute, the sequestration was ordered by a judge upon the filing of a verified complaint by the creditor. In addition, the vendor was required to post bond. The court held a hearing on the debtor’s motion to dissolve the writ of sequestration five weeks after it was executed. Stressing the possibility that the buyer upon notification of the proceeding might destroy or sell the property, the Supreme Court upheld the statute. It further noted that “[t]he usual rule has been ‘[wjhere only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity for ultimate judicial determination of liability is adequate.’ ” Id. at 611, 94 S.Ct. at 1902 (quoting Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931)). In light of the other safeguards required by the statute, the Court found that the sequestration provided procedural due process even in the absence of presequestration notice or hearing. Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Court struck down a Georgia garnishment statute. Under the statute the writ of garnishment was issuable by the clerk upon the receipt of an affidavit by the creditor. The affidavit had only to contain conclusory allegations. Further, the statute failed to provide an early postgarnishment hearing. This Supreme Court tetralogy defines the limits of procedural due process in a consumer context. With the exception of North Georgia Finishing, which involved a corporate bank account, the cases dealt with the attachment of wages or essential household goods, a situation clearly distinguishable from the intricacies of admiralty operations. Maritime needs and require- merits differ substantially from those in the commercial context in which North Georgia Finishing arose. The issue, then, is whether due process is flexible enough to accommodate these differences. B. Due process requires at a minimum adequate notice and the opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652," }, { "docid": "22683883", "title": "", "text": "an early hearing and without participation by a judicial officer. Nor is the statute saved by the more recent decision in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). That case upheld the Louisiana sequestration statute which per mitted the seller-creditor holding a vendor’s lien to secure a writ of sequestration and, having filed a bond, to cause the sheriff to take possession of the property at issue. The writ, however, was issuable only by a judge upon the filing of an affidavit going beyond mere conclusory allegations and clearly setting out the facts entitling the creditor to sequestration. The Louisiana law also expressly entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued. The Georgia garnishment statute has none of the saving characteristics of the Louisiana statute. The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts. § 46-103. The affidavit, like the one filed in this case, need contain only conclusory allegations. The writ is issuable, as jfchis one was, by the court clerk, without participation by a judge. Upon service of the writ, the debtor is deprived of the use of the property in the hands of the garnishee. Here a sizable bank account was frozen, and the only method discernible on the face of the statute to dissolve the garnishment was to file a bond to protect the plaintiff creditor. There is no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment. Indeed, it would appear that without the filing of a bond the defendant debtor’s challenge to the garnishment will not be entertained, whatever the grounds may be. Respondent also argues that neither Fuentes nor Mitchell is apposite here because each of those cases dealt with the application of due process protections to consumers who are victims of contracts of adhesion and who might be" }, { "docid": "16687885", "title": "", "text": "that he is entitled to one.” Id. at 74, 92 S.Ct. at 1991. And finally, the debtor’s only post-deprivation remedy was the potential to be heard as the defendant if the creditor commenced an action to determine his rights to repossession. Given these procedural inadequacies, in addition to the absence of preseizure notice and a hearing, the court declared both statutes unconstitutional. The pathway along which the Supreme Court had been travelling in Sniadach and Fuentes took an abrupt turn when, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court upheld a Louisiana sequestration provision which allowed attachment without preseizure notice or a hearing. The opinion so limited the principles enunciated in Fuentes that several Justices concluded that Fuentes was essentially overruled. See 416 U.S. at 623, 94 S.Ct. at 1908 (Powell, J., concurring) (“I think it fair to say that the Fuentes opinion is overruled.”); 416 U.S. at 635, 94 S.Ct. at 1913 (Stewart, J., dissenting) (“[T]he court today has unmistakably overruled a considered decision of this court that is barely two years old, without pointing to any change in either societal perceptions or basic constitutional understandings that might justify this total disregard of stare decisis.\"). Nevertheless, the Court distinguished the Louisiana provision from the statutes struck down in Fuentes, and found that the Louisiana law was redeemed by several alternative safeguards. First, the writ of sequestration was authorized “ ‘only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts’ shown by verified petition or affidavit.” Mitchell, 416 U.S. at 616, 94 S.Ct. at 1904. Second, in the particular district involved, the requisite showing had to be made to a judge, and only a judge was authorized to issue the writ. Id. Third, the statute provided that “[t]he defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued.” Id. at 622, 94 S.Ct." }, { "docid": "3081681", "title": "", "text": "U.S. at 616-617, 94 S.Ct. at 1904-1905. Rule C lacks at least two of the “saving” devices sanctioned by the Supreme Court in Mitchell: 1) no judicial officer intervenes until defendant comes to Court to answer the plaintiff’s allegations; and 2) no pre-seizure bond is required, though, on cross-claim by defendant, plaintiff may be forced to furnish a bond. A Georgia garnishment statute which did not have the “saving characteristics” of the Louisiana sequestration statute was struck down in North Georgia Finishing Co., Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). The Supreme Court, in describing the procedures laid out in the Georgia statute, was simultaneously enumerating its due process shortcomings: The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts. § 46-103. The affidavit, like the one filed in this case, need contain only conclusory allegations. The writ is issuable, as this one was, by the court clerk, without participation by a judge. Upon service of the writ, the debtor is deprived of the use of the property in the hands of the garnishee. Here a sizable bank account was frozen, and the only method discernible on the face of the statute to dissolve the garnishment was to file a bond to protect the plaintiff creditor. There is no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment. Indeed, it would appear that without the filing of a bond the defendant debtor’s challenge to the garnishment will not be entertained, whatever the grounds may be. Di-Chem, Inc., supra, 419 U.S. at 607, 95 S.Ct. at 722-23. Property, simply because it is movable, possesses no inherent characteristics which immunize it from due process. To hold otherwise would invite distinctions which the Supreme Court has consistently refused to recognize. Indeed, it is difficult to contemplate property more mobile or more susceptible of concealment than automobiles, motorboats, or refrigerators. Yet, it was in the context of litigation involving" }, { "docid": "16687962", "title": "", "text": "“abuse by creditors without valid claims.” 416 U.S. at 614, 94 S.Ct. at 1903. Therefore, judicial participation in issuing a writ of attachment does not provide a substitute for preseizure notice unless that participation helps “minimize the risk that the ex parte procedure will lead to a wrongful taking.” Id. at 617, 94 S.Ct. at 1905. Judicial participation does not meaningfully reduce the risk of a wrongful attachment unless the judge can, if necessary, inquire into the truthfulness of the creditor’s allegations. Otherwise, the judge’s involvement would amount to nothing more than the very type of ministerial determination that the Supreme Court has struck down as insufficient to provide due process when performed by a clerk. See North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 606-07, 95 S.Ct. 719, 722-23, 42 L.Ed.2d 751 (1975). This is not to say, however, that a judge must put every creditor to his proof or that a creditor, prior to issuance of a writ of attachment, must prove his claim by a preponderance of the evidence. Rather, the judge must possess the ability, in the exercise of his discretion, to require more proof from the creditor than the creditor's affidavit in deciding whether to issue a writ of attachment without prior notice to the debtor. For example, under certain circumstances the judge may wish to examine the documents giving rise to the creditor’s interest in the property. If such proof is not forthcoming, the judge should be able to deny issuing the writ until the debtor is provided notice and an opportunity for a hearing. The majority reads Mitchell as requiring no more from the judge than that he determine the facial sufficiency of the allegations. They base their reading on the ground that the state sequestration statute upheld in Mitchell allowed the judge to issue the writ “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by verified petition or affidavit.” 416 U.S. at 616, 94 S.Ct. at 1904. However, nothing" }, { "docid": "13280983", "title": "", "text": "In Fuentes and Sniadach, the Court was concerned primarily with the hardships imposed on debtors when defending against wrongful deprivations. See Fuentes, 407 U.S. at 81, 92 S.Ct. 1983; Sniadach, 395 U.S. at 343, 89 S.Ct. 1820. The Court clarified in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), and N. Ga. Finishing, Inc. v. Di-Chem Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), that predeprivation notice and hearing are not always required for attachment statutes to satisfy due process. In Mitchell, the court approved as constitutional a Louisiana statute that permitted a creditor to secure a writ of sequestration on installment goods without first providing notice or an opportunity to be heard. Unlike the statutes at issue in Fuentes and Sniadach, the Louisiana statute contained certain procedural safeguards against wrongful deprivation, such as a requirement that a creditor provide a detailed factual showing to a judge before the writ could issue, the availability of an “immediate” postdeprivation hearing after attachment, and the presence of judicial supervision throughout the attachment process. Mitchell, 416 U.S. at 608-10, 94 S.Ct. 1895. In light of these safeguards, the debtor’s interest in the continued use and possession of his prop-' erty did not outweigh the creditor’s interest in protecting against the concealment or transfer Of funds, and therefore the debtor was not denied due process when he was given a postdeprivation hearing. Id. at 607, 94 S.Ct. 1895. By contrast, in North Georgia, the Court again invalidated a prejudgment garnishment statute that had none of the safeguards present in Mitchell. North Georgia, 419 U.S. at 607-OS, 95 S.Ct. 719. As it had in Fuentes and Sniadach, the Court in North Georgia disapproved of a procedure where a writ of garnishment was issuable upon bare conclusory allegations by a creditor, and where there was no participation by a judge. Id. The Linds argue that, because the defendants in this case obtained a writ of execution from a court administrator rather than from a judge after a detailed factual showing, North Georgia, rather than Mitchell, should" }, { "docid": "9592688", "title": "", "text": "v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 738 (1931), we refuse to extend this rule to empower other governmental agencies to summarily take property as security for the eventuality that civil penalties must, in fact, be paid. Such a rule would be particularly inappropriate in this case since there has been no showing of a “special need for very prompt action,” to protect the government’s interest. See Fuentes v. Shevin, supra, 407 U.S. at 91, 92 S.Ct. at 2000 and compare Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). There is no allegation or other indication in the record that Aviation would not, or could not, pay any penalty assessed against it unless the helicopter was seized. The power of the FAA to proceed in personam to collect the penalty further diminishes the necessity of summary action. See 49 U.S.C. § 1473(b). This seizure embodied none of the procedural protections which the Supreme Court has emphasized in determining the constitutionality of prehearing seizures. These protections were most clearly articulated in Mitchell v. W. T. Grant, supra, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, where the Court relied on four procedural requirements in upholding the constitutionality of a Louisiana sequestration statute. First, the Court attached considerable weight to the fact that the writ of sequestration was issued by a judge, not by a court clerk. See id. at 616, 94 S.Ct. 1895 and see also North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. at 607, 95 S.Ct. 719. Second, in view of the relatively simple and narrowly drawn questions relevant to the issuance of the writ, the Court found that the affidavits required by the Louisiana statute were sufficiently detailed to reduce the chance of a wrongful sequestration. See Mitchell v. W. T. Grant, supra, 416 U.S. at 617, 94 S.Ct. 1895. Another factor on which the Court relied was that the movant-creditor was obliged to post sufficient bond to protect the debtor in the event the sequestration was later declared to have been “improvident”." }, { "docid": "23388388", "title": "", "text": "which runs the gamut of tort, contract and carriage actions. . In Mitchell, the plurality opinion in upholding the validity of Louisiana sequestration statutes, emphasized that a judge had participated in the issuance of the writ. 416 U.S. at 616-17, 94 S.Ct. at 1904-05. In his concurring opinion, Justice Powell stated that “the constitutional guarantee of procedural due process is fully satisfied in cases of this kind where state law requires . . . that the creditor . .. make a specific factual showing ,before a neutral officer or magistrate of probable cause to believe that he is entitled to the relief requested.” [emphasis supplied], 416 U.S. at 625, 94 S.Ct. at 1909. North Georgia Finishing invalidated a garnishment statute. The plurality distinguished the case before it, where a writ was issuable by the court clerk, from Mitchell, where a judge had participated in the issuance. 419 U.S. at 607, 95 S.Ct. at 722. Concurring, Justice Powell stated that adequate protection was afforded the defendant where state law required that the garnishment be preceded by the garnishor’s establishing “before a neutral officer ... a factual basis of the need to resort to the remedy.” 419 U.S. at 611, 95 S.Ct. at 725. Justice Powell noted that he was not in accord with the Court’s suggestion that the Due Process Clause might require that a judicial officer issue the writ of garnishment. ... It thus should be sufficient for a clerk or other officer of the court to issue the original writ upon the filing of a proper affidavit. 419 U.S. at 611 n.3, 95 S.Ct. at 725 n.3. The potential complexity and magnitude of the seizures in admiralty cases militate strongly in favor of participation by a judicial officer in the issuance of a summons of attachment. . See North Georgia Finishing, Inc., 419 U.S. at 611, 95 S.Ct. at 725 (Powell, J., concurring) (“[p]rocedural due process would be satisfied where state law requires that the garnishment be preceded by the garnishor’s provision of adequate security and by his establishment before a neutral officer of a factual basis of the" }, { "docid": "3081679", "title": "", "text": "property in applying the Due Process Clause.” 419 U.S. at 608, 95 S.Ct. at 723. The Central Soya doctrine is particularly inappropriate here, where the vessel owner is before the Court. Courts have time and again acknowledged the personification theory to be a fiction whose real value is simply as a mechanism to enforce the in personam liability of the owner. Thus, when in personam jurisdiction exists, as it does in the case at bar, there is no basis for ignoring the fundamental safeguards contained in the due process clause. B. “Special Need for Prompt Action” Plaintiff urges this Court to find that Fuentes second requirement, a situation necessitating prompt action, is present, because a vessel may be easily removed from the Court’s jurisdiction. However, it has not been shown that the Rule’s present provisions, which clearly permit a seizure without notice or hearing, are an appropriate solution to the need for prompt action. In Mitchell v. W. T. Grant Company, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court upheld the Louisiana sequestration statute which allows a seller/creditor holding a vendor’s lien after posting a bond, to secure a writ of sequestration and to cause the sheriff to take possession of property. A writ of sequestration may only be issued by a judge upon the creditor’s filing of an affidavit which clearly sets forth sufficient facts to justify the issuance of the writ. The Louisiana law also expressly entitles the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued. In upholding the narrowly-drawn Louisiana statute, the Supreme Court emphasized three “saving clauses:” (1) judicial control of the seizure process; (2) the requirement of a pre-seizure bond; and, (3) the availability of an immediate post-seizure hearing. Should the writ be dissolved, “there are ‘damages for the wrongful issuance of a writ’ and for attorney fees ‘whether the writ is dissolved on motion or after trial on the merits. (La.Civ.Code) Art. 3506.’” Mitchell v. W. T. Grant Company, supra, 416" }, { "docid": "9592689", "title": "", "text": "These protections were most clearly articulated in Mitchell v. W. T. Grant, supra, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, where the Court relied on four procedural requirements in upholding the constitutionality of a Louisiana sequestration statute. First, the Court attached considerable weight to the fact that the writ of sequestration was issued by a judge, not by a court clerk. See id. at 616, 94 S.Ct. 1895 and see also North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. at 607, 95 S.Ct. 719. Second, in view of the relatively simple and narrowly drawn questions relevant to the issuance of the writ, the Court found that the affidavits required by the Louisiana statute were sufficiently detailed to reduce the chance of a wrongful sequestration. See Mitchell v. W. T. Grant, supra, 416 U.S. at 617, 94 S.Ct. 1895. Another factor on which the Court relied was that the movant-creditor was obliged to post sufficient bond to protect the debtor in the event the sequestration was later declared to have been “improvident”. Id. at 606, 94 S.Ct. 1895. Finally, the Court noted the availability of an early hearing at which the creditor could be required to prove the grounds upon which the writ was issued. See id. at 618, 94 S.Ct. 1895. In this case, the FAA executed the initial seizure without filing any papers with any court and without seeking the approval of any court officer, much less the approval of a judge. To make matters worse, the warrant of arrest which was issued one month after the initial seizure was not issued by a judge but by the court clerk. The bare affidavit filed by the U.S. Attorney on which the clerk’s action was based merely alleged that a violation of the Federal Aviation Act had been committed; it was not possible to determine from the affidavit whether the U.S. Attorney’s view was correct or whether the seizure was warranted. There was no requirement that a bond be posted by the government before the seizure was approved. Finally, the statute does not provide for a" }, { "docid": "13726243", "title": "", "text": "(1974). The district judge and the defendants in our case regard Mitchell as supportive of the North Dakota statutory scheme under attack here. We take a different view of Mitchell and hold that because of vital distinctions between the provisions of the Louisiana sequestration law and the North Dakota attachment statute, Mitchell dictates that plaintiffs were denied due process of law. I In achieving a constitutional accommodation of the interests of the debtor and creditor, the issuance and supervision of the warrant of attachment is of vital importance. Only if certain procedural safeguards are included in the attachment process will the possibility of a wrongful taking from the debtor be minimized and the seizure of the goods without prior notice and hearing thereby fall within the limits of tolerance of due process. The statutory scheme of North Dakota, tested by the Mitchell standard, is, in our view, fatally defective. A Under the Louisiana sequestration statute, the writ will not issue on a conclusory allegation of ownership or possessory rights. Moreover, the power of the debtor to conceal or transfer the merchandise to the detriment of the creditor “is one of the considerations weighed in the balance by the Louisiana law in permitting initial sequestration of the property.” 416 U.S. at 609, 94 S.Ct. at 1900. Under N.D.C.C. § 32-08-01, the danger of concealment or disposal of the goods or the possibility of removal of the merchandise from the state by the debtor need not be asserted as general prerequisites for obtaining a warrant of attachment, but rather are only several of nine grounds which the creditor may assert in his affidavit seeking the warrant of attachment. Moreover, the creditor in our case cited § 32-08-01(8) as justifying the attachment in this case, the most general of the nine grounds listed. Reviewing the affidavit submitted in the present case, we do not believe that it is sufficient. The affidavit of Kuchar and the bank’s complaint in the action on the debt, both filed in conjunction with the request for a warrant of attachment, satisfy the requirement of Fuentes and Mitchell that" }, { "docid": "10310494", "title": "", "text": "cases cited above. The current status of Fuentes is unclear in light of North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, and Mitchell v. W. T. Grant, supra. However, even if we were to ignore Fuentes, it seems evident that the Pennsylvania statutes at issue in this case do not pass muster when tested by the due process standards expressed in the Supreme Court’s two most recent cases: Mitchell v. W. T. Grant Co., supra, and North Georgia Finishing, Inc. v. Di-Chem, supra. In Mitchell, the Supreme Court approved Louisiana’s sequestration procedures, which “(1) required a creditor to file an affidavit stating ‘specific facts’ entitling him to sequestration; (2) mandated that the writ was issuable only by a judge; (3) required the creditor to file a bond to protect the debtor from all damages in the event the sequestration was shown to have been wrongful; (4) entitled the debtor to dissolve the sequestration by filing his own bond; and (5) entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued.” (Footnote omitted). In North Georgia Finishing, Inc., the Court held that Georgia’s prejudgment garnishment procedures were constitutionally insufficient because “(1) they allowed a writ of garnishment to issue on affidavit by a creditor or his attorney containing only conclusory allegations; (2) the writ was issuable by the court clerk without participation by a judge; (3) the garnishment could be dissolved only by the filing of a bond, which continued to deprive defendant of the use of some property; and (4) there was no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment.” The Pennsylvania statutes challenged here display few of the “saving characteristics” of the provisions sustained in Mitchell and exhibit many of the objectionable characteristics of the provisions struck down in North Georgia Finishing, Inc. Under the statutes at issue in this case, a garageman who wishes to sell a customer’s vehicle must serve the owner with written" }, { "docid": "23388365", "title": "", "text": "do not find Fuentes controlling here. In Mitchell v. W. T. Grant Co., supra, the Court upheld Louisiana’s sequestration procedures, allowing prejudgment seizure of goods on behalf of the seller-creditor, without affording the buyer-debtor prior notice and opportunity to be heard. The Court emphasized that it had previously “unanimously approved prejudgment attachment liens effected by creditors without notice, hearing, or judicial order....,” 416 U.S. at 613, 94 S.Ct. at 1903, citing Coffin Bros. v. Bennett, 1928, 277 U.S. 29, 31, 48 S.Ct. 422, 423, 72 L.Ed. 768; Ownbey v. Morgan, 1921, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed.2d 837; McKay v. Mclnnes, 1929, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed.2d 975. It also emphasized the danger that the defendant might sell or otherwise dispose of the goods, 416 U.S. at 605, 94 S.Ct. at 1899, and that the property would diminish in value while it remains in the debtor’s possession. Id. at 608, 610, 94 S.Ct. at 1900, 1901. Fuentes was distinguished, 416 U.S. at 615-616, 94 S.Ct. at 1904. Mitchell also involved household goods, a refrigerator, range, stereo, and washing machine. The case is not directly in point here, but supports a conclusion that pre-attachment notice and hearing are not required in our ease. In Calero-Toledo v. Pearson Yacht Leasing Co., supra, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, the Court again applied the “extraordinary situation” analysis of Snia-dach and Fuentes and upheld the summary seizure and subsequent forfeiture, initiated by government officials, of a yacht that was allegedly used in an illegal smuggling scheme. Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751, the Court struck down a Georgia garnishment statute. Under the Georgia statute, a writ of garnishment was issuable by the court clerk after receipt of an affidavit of a creditor or his attorney. The affidavit had only to contain conclusory allegations, and the statute did not provide for an early post-garnishment hearing. The Court, relying on Fuentes, stated that [bjeeause the official seizures had been carried out without notice and without" }, { "docid": "3081680", "title": "", "text": "Louisiana sequestration statute which allows a seller/creditor holding a vendor’s lien after posting a bond, to secure a writ of sequestration and to cause the sheriff to take possession of property. A writ of sequestration may only be issued by a judge upon the creditor’s filing of an affidavit which clearly sets forth sufficient facts to justify the issuance of the writ. The Louisiana law also expressly entitles the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued. In upholding the narrowly-drawn Louisiana statute, the Supreme Court emphasized three “saving clauses:” (1) judicial control of the seizure process; (2) the requirement of a pre-seizure bond; and, (3) the availability of an immediate post-seizure hearing. Should the writ be dissolved, “there are ‘damages for the wrongful issuance of a writ’ and for attorney fees ‘whether the writ is dissolved on motion or after trial on the merits. (La.Civ.Code) Art. 3506.’” Mitchell v. W. T. Grant Company, supra, 416 U.S. at 616-617, 94 S.Ct. at 1904-1905. Rule C lacks at least two of the “saving” devices sanctioned by the Supreme Court in Mitchell: 1) no judicial officer intervenes until defendant comes to Court to answer the plaintiff’s allegations; and 2) no pre-seizure bond is required, though, on cross-claim by defendant, plaintiff may be forced to furnish a bond. A Georgia garnishment statute which did not have the “saving characteristics” of the Louisiana sequestration statute was struck down in North Georgia Finishing Co., Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). The Supreme Court, in describing the procedures laid out in the Georgia statute, was simultaneously enumerating its due process shortcomings: The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts. § 46-103. The affidavit, like the one filed in this case, need contain only conclusory allegations. The writ is issuable, as this one was, by the court clerk, without participation by a" }, { "docid": "8961552", "title": "", "text": "the Florida and Pennsylvania prejudgment replevin statutes, under which actions for repossession of a gas stove, stereo, bed, table, and other household goods occurred, violated due process. Moreover, the Court stated that, absent extraordinary circumstances, before a debtor could be deprived of a significant property interest, he or she must be notified and given the opportunity to contest the creditor’s claim. 407 U.S. at 82, 92 S.Ct. at 1995. In Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), however, the Supreme Court upheld the constitutionality of a Louisiana sequestration statute even though it did not provide notice and a hearing before a refrigerator, a range, a stereo, and a washing machine were sequestered. The Mitchell decision emphasized that the creditor also had a property interest in the sequestered property and that, after weighing the competing interests of the creditor and the debtor, the procedural safeguards in the Louisiana statute provided the debtor sufficient due process after the deprivation. The procedural safeguards in the Louisiana statute were a factually detailed affidavit to be filed with the writ, the posting of an adequate creditor’s bond, return of the property by the posting of a debtor’s bond, an immediate post-deprivation hearing, creditor’s liability for a wrongful attachment, and judicial supervision of the entire process. Id. at 608-10, 94 S.Ct. at 1900-01. The Supreme Court emphasized that the “requirements of due process of law ‘are not technical,’ ” and that a court must consider a creditor remedy scheme “as a whole.” Id. at 610, 94 S.Ct. at 1901. Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Supreme Court, relying on Fuentes, struck down a Georgia statute which permitted garnishment of a business’s bank account without notice or a hearing. The procedural safeguards in the statute were insufficient because they did not provide for judicial supervision, a factually complete affidavit, or an early hearing. Id. at 607, 95 S.Ct. at 722. This Court in 1975, in Guzman v. Western State Bank of Devils Lake, 516 F.2d" }, { "docid": "8961556", "title": "", "text": "Constitution, such as requiring an affidavit setting out the “specific facts” in support of the claim. See Mitchell, 416 U.S. at 616, 94 S.Ct. at 1904. While the South Dakota statute did not on its face require the showing of “specific facts” in the affidavit, see S.D. Codified Laws Ann. § 21-17-3 (1979), it was interpreted by the South Dakota Supreme Court as requiring such a showing. See Black Hills Mercantile Co. v. Bender, 59 S.D. 241, 238 N.W. 883, 885 (1931) (interpreting section 2433 of the South Dakota Revised Code of 1919 which, in relevant part, is similar to section 21-17-3). Although Norwest did not state specific facts in support of the attachment in its affidavit, Watertown Equipment did not seek dissolution of the writ in state court on the basis of this omission. Because state law on this issue would have provided a sufficient remedy, we could not find a constitutional violation based to any extent on the insufficiency of the facts in the affidavit. See Lugar, 457 U.S. at 940, 102 S.Ct. at 2755 (private creditor’s actions unlawful under state attachment law cannot be attributed to the “state” for the purposes of section 1983). The appellees point to other safeguards in the South Dakota statute. Mitchell and North Georgia Finishing stress the importance of an “immediate” post-deprivation hearing wherein the creditor has the burden of proving the grounds upon which the writ was issued. See Guzman, 516 F.2d at 131. The South Dakota statute can be interpreted as having provided for an immediate hearing. Although the statute did not specify when a hearing must occur, its language was, in essence, no different on this point from the Louisiana sequestration statute which, in Mitchell, 416 U.S. at 606, 622, 94 S.Ct. at 1899, 1907, the Supreme Court said provided for an immediate post-deprivation hearing. The appellees also point to the provision in the South Dakota statute which allowed the debtor to post a bond immediately after the attachment and regain possession of the property before a hearing. See section 21-17-26. Mitchell mentions this as one factor which could" } ]

[ { "docid": "22344517", "title": "", "text": "evidence, when at a future period any question might arise as to their terms. No doubt, he further observes, formerly it was the practice to construe not only penal statutes, but statutes which interfered with the common law, as strictly as possible; but, in my opinion, that is not the proper course of proceeding. Alderson, B., observed: “ The very circumstance that the contract exceeds the year, brings it within the statute. If it were not so, contracts for any number of years might be made by parol, provided they contained a defeasance, which might come into operation before the end of the first year.” We might refer to many other cases arising upon this statute. They are numerous, and'not always consistent, for the reason, pi’obably, given by Pollock, C. B., that the courts at first construed the enactment as strictly as possible, as it interfered with the common law. We think the construction given in the cases referred to is sound, and adopt it. The result is, that the contract in question is void, not being in writing. It is a contract not to be performed within the year, subject to a defeasance by the happening of a certain event, which might or might not occur within that. time. All the mischiefs which the statute was intended to remedy apply with full force to it. Judgment reversed, the cause remitted, and Venire de novo. As reported in 24 Howard. Wood v. Jackson, 8 Wendell, 10, 16, 31, 36; Washington, &c., Packet Co. v. Sickles, 24 Howard, 333, 343, 345; Lawrence v. Hunt, 10 Wendell, 80; Cowen & Hill’s Notes to Phillips’s Evidence, Part 2, N. 121. Wood v. Jackson, 8 Wendell, 36; Lawrence v. Hunt, 10 Id. 85; Hitckin v. Campbell, 2 Blackstone, 827; Saunders on Pleading and Evidence, Pt. L. 260. Boydell v. Drummond, 11 East, 142; Broadwell v. Getman, 2 Denio, 87, 9 Barnewall & Cresswell, 392. 2 Hurlstone & Norman, 81. Mr. Justice MILLER, dissenting. I dissent from the opinion of the court just delivered. The points in the case before us for review are whether" } ]

[ { "docid": "22807766", "title": "", "text": "extends only to such promises where, by the express appointment of the party, the thing is not to be performed within a year.” Anon., 1 Salk. 280. Again, in a case in the King’s Bench in 1762, an agreement to leave money by will was held not to .be within the. statute, although uncertain as to the time of performance. Lord Mansfield said that the law was settled by the earlier cases. Mr. Justice Denison said: “The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A eontingenoy is not within it; nor any case that depends upon contingency. It does not extend to cases where the thing only may be performed within the year; and the act cannot be extended further than the words of it.” And Mr. Justice 'Wilmot said that the rule laid down in 1 Salk. 280, above quoted, was the true rule. Fenton v. Emblers, 3 Burrow, 1278; S. C. 1 W. Bl. 353. It thus appears to have been the settled construction of this clause of the statute in England, before the Declaration of Independence, that an oral agreement which, according to the intention of the parties, as shown by the terms of the contract, might be fully performed within a year from the time it was made, was not within the statute, although the time.of its performance was uncertain, and might probably extend, and be expected by the parties to extend, and did in fact extend,' beyond the year. The several States of the Union, in reenacting this provision of the statute of frauds in its original words, must be taken to have adopted the known and settled construction which\" it had received by judicial decisions in England. Tucker v. Oxley, 5 Cranch, 34, 42; Pennock v. Dialogue, 2 Pet. 1, 18; Macdonald v. Hovey, 110 U. S. 619, 628. And the rule established in England by those decisions has ever since been generally recognized in England and America, although it may in a few instances have been warped" }, { "docid": "22807770", "title": "", "text": "authorities that an agreement by which a debtor, in consideration of his creditor’s agreeing to forbear to sue him during his lifetime, promised that his executor should pay the amount of the debt, was not within'the statute; and Chief Justice Best said: “The present case is clearly distinguishable from Boydell v. Drummond, where upon the face of the agreement it appeared that the contract was not to be executed within a year.” In Souch v. Strawbridge, (1846) 2 C. B. 808, a contract to support a child, for a guinea a month, as long as the child’s father should think proper, was held not to be within the. statute, which, as Chief Justice Tindal said, “speaks of ‘any agreement that is not to be performed within the space of one year from the making thereof ’; pointing to contracts the complete performance of which is of necessity extended beyond the space of a year. That appears clearly from the case of Boydell v. Drummond, the rule to be extracted from which is, that-, where the agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but that, where the contract is such that the whole may be performed within a year, and there' is no express stipulation to the contrary., the statute does not apply.” In Murphy v. O'Sullivan, (1866) 11 Irish Jurist (N. S.) 111, the Court of Exchequer Chamber in Ireland, in a series of careful opinions by Mr. Justice 0’IIagan (afterwards Lord Chancellor of Ireland), Baron Fitzgerald,- Chief Baron Pigot and Chief Justice Monahan, reviewing the English cases, held that'under the Irish statute of frauds of Y Will. Ill, c. 12, (which followed in this respect the words of the English statute,) an agreement to maintain and clothe a man during his life was not required to be in writing. In the recent case of McGregor v. McGregor, 21 Q. B. D. 424, (1888) the English Court of Appeal held that a lawful agreement made between" }, { "docid": "22807773", "title": "", "text": "in the statute of frauds, an agreement which appears from its terms to be incapable of performance within the year.” And each of the three judges took occasion to éxpress approval of the decision in Murphy v. O'Sullivan, above cited, and to disapprove the opposing decision of Hawkins, J., in Davey v. Shannon, 4 Ex. D. 81. The cases on this subject in the courts of the several States are generally in accord with the English cases above cited. They are so numerous, and have been, so fully colleéted in ■Browne on the Statute of Frauds, (5th ed.) c. 13, that we shall refer to but few of them, other.than those cited by counsel in the case at bar. In Peters v. Westborough, 19 Pick. 364, an agreement to support a girl of twelve years old until she was eighteen was held not to be within the statute. ' Mr. Justice Wiltle^ ip delivering judgment, after quoting Peter v. Compton, Fenton v. Emblers and Boydell v. Drummond, above cited, said: “ From these authorities it appears to be settled, that in order to bring a parol agreement within the clause of the statute in question, it must either have 'been expressly stipulated by the parties, or it must appear to have been so understood by them, that the agreement was not to be performed within a year. And this stipulation or understanding is to be absolute and certain, and not to depend upon any contingency. And this, we think, is the clear meaning of the statute. In the present case, the performance of the plaintiff’s agreement with the child’s father depended on the contingency of her life. If she had continued in the plaintiff’s service, 'and he had supported her, and she had died within a year after the making of the agreement, it would have been fully performed. And an agreement by parol is not within the statute, when by the happening of any contingency it might, be performed within a year.” In many other States, agreements to support a person for life have been held not to be" }, { "docid": "22807769", "title": "", "text": "they should be enabled to produce two numbers within the course of every year. The book in which the defendant subscribed his name had only, for its title, “Shakespeare subscribers, their signatures,” without any reference to either prospectus. The contract was held to be within the statute of frauds, as one not to be performed within a year, because, as Was demonstrated in concurring opinions of Lord Ellenborough and Justices Grose, Le Blanc and Bayley, the contract, according to the understanding and contemplation of the parties, as manifested by the terms of the contract, was not to be fully performed (by the completion of the whole work) within the year; and consequently, a full completion within the year, even if physically possible, would not have been according to the terms or the intent of the contract, and could not have entitled the publishers to demand immediate payment of the whole subscription. In Wells v. Horton, (1826) 4 Bing. 40; S. C. 12 J. B. Moore, 177, it was held to be settled by the earlier authorities that an agreement by which a debtor, in consideration of his creditor’s agreeing to forbear to sue him during his lifetime, promised that his executor should pay the amount of the debt, was not within'the statute; and Chief Justice Best said: “The present case is clearly distinguishable from Boydell v. Drummond, where upon the face of the agreement it appeared that the contract was not to be executed within a year.” In Souch v. Strawbridge, (1846) 2 C. B. 808, a contract to support a child, for a guinea a month, as long as the child’s father should think proper, was held not to be within the. statute, which, as Chief Justice Tindal said, “speaks of ‘any agreement that is not to be performed within the space of one year from the making thereof ’; pointing to contracts the complete performance of which is of necessity extended beyond the space of a year. That appears clearly from the case of Boydell v. Drummond, the rule to be extracted from which is, that-, where the" }, { "docid": "22807794", "title": "", "text": "purposes as long as he needed if1’; and no contingency wThich should put an end to the performance of the contract, other than his not needing the switch for the purpose of his business, appears to have been in the mouth, or in the mind, of either party. If, within a. year after the making of the contract, the plaintiff had died, or had abandoned his whole business at this place, or for any other reason had ceased to need the switch for the shipping of lumber, the railroad company would have been no longer under any obligation to maintain the switch, and the contract would have been brought to an end by having been fully performed. The complete performance of the contract depending upon a contingency which might happen yvithin the year, the con tract is not within the statute of frauds as an “agreement which is not to be performed within the space of one year from the making thereof.” Nor is it within the other clause of the statute of frauds, relied on in the answer, which requires certain conveyances of real estate to be in writing. The suggestion made in the argument for the defendant in error, that the contract was, in substance, a grant of an easement in real estate, and as such within the statute, overlooks the difference between the English and the Texan statutes in this particular. The existing statutes of Texas, while they substantially follow the English statute of frauds,- so far as to require a conveyance of any “ estate of inheritance or freehold, or for a term of more than one year, in lands and tenements,” as well as “ any contract for the sale of real estate, or the lease thereof for a longer term than one year,” to be in writing, omit to reenact the additional words of the English statute, in the clause concerning conveyances, “ or any uncertain interest of, in, to or out of ” lands or tenements, and, in the other clause, “ or any interest in or concerning them.” Stat. 29 Car. II," }, { "docid": "22807772", "title": "", "text": "husband and wife, in compromise of legal proceedings, by which they agreed to live apart, the husband agreeing to allow the wife a weekly sum for maintenance, and she agreeing to maintain herself and her children, and to indemnify him against any debts contracted by her, was not within the statute. Lord Esher, M. B., thought the true doctrine on the subject was that laid down by Chief Justice Tindal in the passage above quoted from Souch v. Strawbridge. Lord Justice Bindley said: “ The provisions'of the statute have been construed in a series of decisions from which we cannot depart. The effect .of these decisions is that, if the contract can by possibility be performed within the year, the statute does not apply.” Lord Justice Bowen said: “There has been a decision which for 200 years has been accepted as the leading case on the subject. In Peter v. Compton, it •was held that ‘an agreement that is not to be performed within the space of a year from the making thereof ’ means, in the statute of frauds, an agreement which appears from its terms to be incapable of performance within the year.” And each of the three judges took occasion to éxpress approval of the decision in Murphy v. O'Sullivan, above cited, and to disapprove the opposing decision of Hawkins, J., in Davey v. Shannon, 4 Ex. D. 81. The cases on this subject in the courts of the several States are generally in accord with the English cases above cited. They are so numerous, and have been, so fully colleéted in ■Browne on the Statute of Frauds, (5th ed.) c. 13, that we shall refer to but few of them, other.than those cited by counsel in the case at bar. In Peters v. Westborough, 19 Pick. 364, an agreement to support a girl of twelve years old until she was eighteen was held not to be within the statute. ' Mr. Justice Wiltle^ ip delivering judgment, after quoting Peter v. Compton, Fenton v. Emblers and Boydell v. Drummond, above cited, said: “ From these authorities it" }, { "docid": "22807774", "title": "", "text": "appears to be settled, that in order to bring a parol agreement within the clause of the statute in question, it must either have 'been expressly stipulated by the parties, or it must appear to have been so understood by them, that the agreement was not to be performed within a year. And this stipulation or understanding is to be absolute and certain, and not to depend upon any contingency. And this, we think, is the clear meaning of the statute. In the present case, the performance of the plaintiff’s agreement with the child’s father depended on the contingency of her life. If she had continued in the plaintiff’s service, 'and he had supported her, and she had died within a year after the making of the agreement, it would have been fully performed. And an agreement by parol is not within the statute, when by the happening of any contingency it might, be performed within a year.” In many other States, agreements to support a person for life have been held not to be within the statute.,. Browne on Statute of Frauds, § 276. The decision of the Supreme Court of Tennessee in Deaton v. Tennessee Coal Co., 12 Heiskell, 660, cited by the defendant in error, is opposed to the'weight of authority. In Roberts v. Rockbottom Co., 7 Met. 46, Chief Justice Shaw declared the settled rule to be that “ when the contract may, by its terms, be fully performed within the year, it is not void by the statute of frauds, although in some contingencies it may extend beyond a year ” ; and stated the case then before the court as follows : “ The contract between the plaintiff and the company was that they should employ him, and that he should serve them, upon .the terms agreed on, five years, or so long as Leforest should continue their agent. This is a 'contract which might have been fully performed within the year. The legal effect is the same as if it were expressed as an agreement to serve the company so long as Leforest" }, { "docid": "22807767", "title": "", "text": "appears to have been the settled construction of this clause of the statute in England, before the Declaration of Independence, that an oral agreement which, according to the intention of the parties, as shown by the terms of the contract, might be fully performed within a year from the time it was made, was not within the statute, although the time.of its performance was uncertain, and might probably extend, and be expected by the parties to extend, and did in fact extend,' beyond the year. The several States of the Union, in reenacting this provision of the statute of frauds in its original words, must be taken to have adopted the known and settled construction which\" it had received by judicial decisions in England. Tucker v. Oxley, 5 Cranch, 34, 42; Pennock v. Dialogue, 2 Pet. 1, 18; Macdonald v. Hovey, 110 U. S. 619, 628. And the rule established in England by those decisions has ever since been generally recognized in England and America, although it may in a few instances have been warped or misapplied. The decision in Boydell v. Drummond, (1809) 11 East, 142, which has been sometimes supposed to have modified the rule, was really in exact accordance with it. In that case, the declaration alleged that the Boydells had proposed to publish by subscription a series of large prints from some of the scenes of Shakespeare’s plays, in eighteen numbers containing four plates each, at the price of three guineas a number, payable as each was issued; and one number, at least, to be annually published after the delivery of the first; and that the defendant became a subscriber for one set of prints, and accepted and paid for two numbers, but refused to accept or pay for the rest. The first prospectus issued by the publishers stated certain conditions, in substance as set out in the declaration, and others showing the magnitude of the undertaking, an.d that its completion would unavoidably take a considerable time. A second prospectus stated that one number at least should be published annually, and .the proprietors were confident that" }, { "docid": "3390849", "title": "", "text": "is there held that this clause of the statute only applies to agreements which, according to the true intenfion of the parties as shown by the terms of their contract, cannot be fully performed within a year, and not to an agreement which may be fully performed within the year, although the time of performance is uncertain, and may probably extend, and may have been expected by the parties to extend, and does in fact extend, beyond the year. Tested by this rule, it is plain that the present agreement falls within the condemnation of the statute. The agreement, by its terms, as found by the master, — and, in my opinion, correctly, — cannot be fully performed until (he expiration of the period of 17 years. It is incapable of full performance, according to the true intent of the parties as disclosed by the agreement, within one year from the making thereof. The ease of Packet Co. v. Sickles, 5 Wall. 580, 595, is decisive of this question. As has been said, the agreement was entered into and was to be performed in the state of Pennsylvania, and was by the lawr of that stale valid, and provable by parol testimony. If the statute of frauds of the state where the contract was made and to be performed enters into and forms a part of the obligation of the contract, as distinguished from the remedy for the enforcement of it, the agreement in suit would be-enforceable! here. The general rule of tht' law, with some exceptions,, not; necessary to be stated here, is that a contract valid by the law of the place whore made and to be pen-formed is valid everywhere. Counsel for complainant earnestly contend that, the oral agreement being valid, and provable by oral testimony by the law of Pennsylvania, is valid and provable by the like testimony here;, notwithstanding the statute of frauds of this state forbids the! maintenance of a suit upon such oral agreement. It may be considered as settled that whatever relates to the remedy, and constitutes a part of the procedure," }, { "docid": "6422078", "title": "", "text": "for just cause. Plaintiff claims that the defendants breached that contract by voting to terminate him without just cause. The defendants argue that the alleged contract is unenforceable because it is within the New York Statute of Frauds, which states, in pertinent part: Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking ... [b]y its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime ____ N.Y.Gen.Oblig.Law § 5-701(a)(l). The guiding principles applicable to this section as it pertains to employment contracts were given their most thorough recent treatment by the New York Court of Appeals in D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 483 N.Y.S.2d 164, 472 N.E.2d 992 (1984), in which the court noted the traditionally narrow interpretation of the one-year provision of the Statute of Frauds by the New York courts to bar the enforcement of oral employment agreements “only which by their very terms have absolutely no possibility in fact and law of full performance within one year.” Id. at 454, 483 N.Y.S.2d at 165, 472 N.E.2d at 993. In other words, the court must analyze the oral agreement to determine if: according to the parties’ terms, there might be any possible means of performance within one year. Wherever an agreement has been found to be susceptible of fulfillment within that time, in whatever manner and however impractical, this court has held the one-year provision of the Statute to be inapplicable, a writing unnecessary, and the agreement not barred, [citations omitted] Id. at 455, 483 N.Y.S.2d at 166, 472 N.E.2d at 994. On the other hand, there are oral agreements which are, by their very terms, incapable of completion within one year and therefore unenforceable. Id. at 456, 483 N.Y.S.2d at 166-67, 472 N.E.2d at 994-95. Among these agreements are those which are" }, { "docid": "22807793", "title": "", "text": "time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year. No definite term of time for the performance of the contract appears to have been mentioned or contemplated by the parties ; nOr was there any agreement as to. the amount of lumber to be sawed or shipped by the plaintiff, or as to the time during which he should keep up his mill. The contract of the railroad company was with, and for the' benefit of, the plaintiff personally. The plaintiff’s own testimony shows (although that is not essential) that he understood that the performance of the contract would end with his own life. The obligation of the railroad company to maintain the switch was in terms limited and restricted by the qualification “ for the plaintiff's, benefit for shipping purposes as long as he needed if1’; and no contingency wThich should put an end to the performance of the contract, other than his not needing the switch for the purpose of his business, appears to have been in the mouth, or in the mind, of either party. If, within a. year after the making of the contract, the plaintiff had died, or had abandoned his whole business at this place, or for any other reason had ceased to need the switch for the shipping of lumber, the railroad company would have been no longer under any obligation to maintain the switch, and the contract would have been brought to an end by having been fully performed. The complete performance of the contract depending upon a contingency which might happen yvithin the year, the con tract is not within the statute of frauds as an “agreement which is not to be performed within the space of one year from the making thereof.” Nor is it within the other clause of the statute of frauds, relied" }, { "docid": "22807765", "title": "", "text": "“ Where the agreement is to be performed upon a contingent, and it does not appear within the agreement, that it is to be performed after the year, then a note in writing is not necessary, for the contingent might happen within the year; but where it appears by the whole tenor of the agreement, that it is to be performed after the year, there a note is necessary.” Peter v. Compton, (1693) Skinner, 353; S. C. Holt, 326; S. C. cited by Lord Holt in Smith v. Westall, 1 Ld. Raym. 316, 317; Anon., Comyns, 49, 50; Comberbach, 463. Accordingly, about the same time, all the judges held that a promise to pay so much money upon the return of a certain ship, which ship happened not to return within two years after the promise made, was not within the statute, “ for that • by possibility the ship might have returned within a year; and although by accident it happened not to return so soon; yet, they said, that clause of the statute extends only to such promises where, by the express appointment of the party, the thing is not to be performed within a year.” Anon., 1 Salk. 280. Again, in a case in the King’s Bench in 1762, an agreement to leave money by will was held not to .be within the. statute, although uncertain as to the time of performance. Lord Mansfield said that the law was settled by the earlier cases. Mr. Justice Denison said: “The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A eontingenoy is not within it; nor any case that depends upon contingency. It does not extend to cases where the thing only may be performed within the year; and the act cannot be extended further than the words of it.” And Mr. Justice 'Wilmot said that the rule laid down in 1 Salk. 280, above quoted, was the true rule. Fenton v. Emblers, 3 Burrow, 1278; S. C. 1 W. Bl. 353. It thus" }, { "docid": "10987664", "title": "", "text": "Helmsley-Spear, Inc., 177 A.D.2d 147, 581 N.Y.S.2d 16 (1st Dep’t 1992), Raes v. So-Lite Furniture Corp., 4 A.D.2d 851, 166 N.Y.S.2d 471 (4th Dep’t 1957). A “net profit payout” interest is somewhat akin to commission sales percentage, whose enforceability was codified in the Labor Law § 191(1). Travelstead also argues that Canet’s equity participation claims are barred by the Statute of Frauds. This is misplaced for several reasons. New York General Obligations Law § 5-701(a) provides, in pertinent part: Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be changed therewith, or by his lawful agent, if such agreement, promise or undertaking: 1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime The statutory provision is inapplicable here: first, it is undisputed that Canet’s employment contract was one for employment at will, capable of performance within one year. Second, even viewing the grants of equity participation as independent contracts, they were capable of performance within a year given the very real possibility that Travel-stead would sell a development project prior to its completion. See Blake v. Voight, 134 N.Y. 69, 75, 31 N.E. 256 (1892): “Where the parties agree to carry on business for a period exceeding one year, or until the happening of an event which may transpire before the end of the year, we think that by principle, as well as by the weight of authority, the contract is protected from the operation of the statute.” Also, id at 73, 31 N.E. 256: “The contingency did not defeat the contract, but simply advanced the period of fulfillment.” Ordinarily, Travelstead’s participation in development projects did not continue to the completion of the project. The fact that the point at which the Travelstead interest in a development project was sold generally occurred more than a year after his offer of an interest to Canet should not obscure the fact that the interest could" }, { "docid": "22807771", "title": "", "text": "agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but that, where the contract is such that the whole may be performed within a year, and there' is no express stipulation to the contrary., the statute does not apply.” In Murphy v. O'Sullivan, (1866) 11 Irish Jurist (N. S.) 111, the Court of Exchequer Chamber in Ireland, in a series of careful opinions by Mr. Justice 0’IIagan (afterwards Lord Chancellor of Ireland), Baron Fitzgerald,- Chief Baron Pigot and Chief Justice Monahan, reviewing the English cases, held that'under the Irish statute of frauds of Y Will. Ill, c. 12, (which followed in this respect the words of the English statute,) an agreement to maintain and clothe a man during his life was not required to be in writing. In the recent case of McGregor v. McGregor, 21 Q. B. D. 424, (1888) the English Court of Appeal held that a lawful agreement made between husband and wife, in compromise of legal proceedings, by which they agreed to live apart, the husband agreeing to allow the wife a weekly sum for maintenance, and she agreeing to maintain herself and her children, and to indemnify him against any debts contracted by her, was not within the statute. Lord Esher, M. B., thought the true doctrine on the subject was that laid down by Chief Justice Tindal in the passage above quoted from Souch v. Strawbridge. Lord Justice Bindley said: “ The provisions'of the statute have been construed in a series of decisions from which we cannot depart. The effect .of these decisions is that, if the contract can by possibility be performed within the year, the statute does not apply.” Lord Justice Bowen said: “There has been a decision which for 200 years has been accepted as the leading case on the subject. In Peter v. Compton, it •was held that ‘an agreement that is not to be performed within the space of a year from the making thereof ’ means," }, { "docid": "1810563", "title": "", "text": "statute, and must be in writing, although it contains a provision for the termination of the contract at - any time within the year, upon the giving of a prescribed notice. If such contract should be terminated within the year, the result would not be an alternative form of performance, but excusable nonperformance. 72 Am.Jur.2d Statute of Frauds § 40 (1974) (citations omitted). Furthermore, Professors Williston and Lord, in Williston on Contracts, explain that in contradistinction to the rule laid down by the courts in cases involving alternative performances is the principle governing promises not in writing where the contingency is not a true alternative, but an excuse for nonperformance by way of annulment. Oral agreements which are subject to a right of cancellation or defeasance, not by operation of law but by the express terms of the contract, within the period of a year— such as a contract for several years’ service containing a provision permitting termination by either party on a week’s or a month’s notice — are generally held to be within the Statute. 9 Williston on Contracts § 24:9 (4th ed.1999). The majority of Illinois courts either specifically recognize this distinction, or their decisions are consistent with the distinction. See Cargo v. Allstates Air Cargo, Inc., No. 98-C-1422, 1998 WL 601910, at *2 (N.D.Ill. Sept.9, 1998) (unpublished) (applying Illinois law); Cherry Payment Sys., Inc. v. Rogers, No. 92-C-5918, 1993 WL 291694, at *2-3 (N.D.Ill. Aug.2, 1993) (unpublished) (applying Illinois law); La-master v. Chicago and Northeast Illinois Dist. Council, 766 F.Supp. 1497, 1507-09 (N.D.Ill.1991) (applying Illinois law); Vaj-da v. Arthur Andersen & Co., 253 Ill. App.3d 345, 348, 358, 191 Ill.Dec. 965, 624 N.E.2d 1343 (1993); Gilliland v. Allstate Ins. Co., 69 Ill.App.3d 630, 633, 26 Ill.Dec. 444, 388 N.E.2d 68 (1979); Balstad v. So lem Machine Co., 26 Ill.App.2d 419, 423-24, 168 N.E.2d 732 (1960). In cases such as the one at bar, where a definite term of employment is contemplated by the oral agreement, the agreement of employment is intended to run for a certain number of years, “and any contingency that terminates the agreement" }, { "docid": "1810565", "title": "", "text": "cuts that contemplated period short, preventing full performance.” Lamaster, 766 F.Supp. at 1508. It is, in these cases, “significant that the agreement established a contemplated term and the plaintiffs departure would cut that term short, thereby frustrating the intent of the contract.” Id. In Gilliland, an oral contract was found to be unenforceable under the statute of frauds, where the agreement provided for plaintiff to be employed until retirement at age 62, as long as he complied with all lawful direction of the employer. See 69 Ill.App.3d at 633, 26 Ill.Dec. 444, 388 N.E.2d 68. Although the contract specified that it would end if the contingency came to pass, the contingency was interpreted as interfering with, rather than effecting, full performance. See id. Similarly, in Cargo, the oral contract between plaintiff and defendant anticipated a four-year performance term. The court found that although termination within a year was possible under the contract, such an action would frustrate the term contemplated by the parties; therefore, that contract fell within the statute of frauds. See 1998 WL 601910, at *2. Although in Chen-y the plaintiff attempted to enforce a three-year employment contract that was terminable for cause, the court found that plaintiff did not allege, “nor do the facts indicate, that this contract was capable of performance within a year.” 1993 WL 291694, at *3. According to the court, by its very terms, the three-year contract was incapable of being performed in one year. See id. Likewise, in Owen, the alleged oral agreement between plaintiff and defendant provided that defendant would employ plaintiff for three years. See 1990 WL 133227, at *4. However, it also contained a discharge provision, whereby defendant could discharge Owen if it ceased doing business before the end of the contract term. See id. The court in Owens determined that plaintiffs interpretation of prior precedent, including Mueller, extended the “within one year” exception too far. See Owen, 1990 WL 133227, at *4. The court in Owen also determined that what the court in Sinclair meant was that “if plaintiff could fully perform the actual work contemplated by the" }, { "docid": "20259457", "title": "", "text": "party to a contract might die less than a year after a contract with a term of more than one year was consummated does not take the agreement out of the statute of frauds. As a corollary, the Texas court recognized in dicta that the same reasoning applies when a contract expressly grants either party the right to terminate at any time a contract with a stated term of more than one year: Contracts for service for more than a year ... [terminable] at the election of a party upon the happening of some event, or even at the mere will of a party, have generally been held to be within the statute. The contemplated performance would occupy more than a year. If the contract should be terminated within the year, the result would not be an alternative form of performance, but excusable nonperformance. In Gilliam, the Texas court cited Williston on Contracts as support for this conclusion. Section 24:9 of Williston expresses the view that The Texas courts of appeals have continued to follow the rule announced in Gilliam: [o]ral agreements which are subject to a right of cancellation or defeasance, not by operation of law but by the express terms of the contract, within the period of a year — such as a contract for several years’ service containing a provision permitting termination by either party on a week’s or a month’s notice — are generally held to be within the Statute. [I]f an agreement could be fully “performed” within one year of its making, section 26.01(b)(6) does not apply. But if the occurrence of some other contingent event, even if expressly contemplated in the agreement, would simply terminate the agreement before the agreement had been fully performed, then the possibility of that terminating event occurring within one year of the agreement’s making is insufficient to take the agreement outside of section 26.01(b)(6). Although the Restatement (Second) of Contracts appears to take a contrary position, Texas law is consistent with what the court in Gilliam deemed to be the majority view on this issue. The Gilliam court noted" }, { "docid": "3390848", "title": "", "text": "or unequal in its terms. The agreement was, as has been said, for the sale of the exclusive use of a process for the manufacture of polished steel plates. No limitation of the term for which the license was to run is fixed by the contract set out in the bill of complaint. But the master finds that it was to continue in force for the period of 17 years. During this term the complainant was bound to pay for the right to such exclusive use not less than |750 per month. It was contended by counsel for complainant that the statute of frauds did not apply, because the agreement does not appear from its terms to be incapable of performance within the year. The true construction of the clause of the statute of frauds which requires a memorandum in writing of “any agreement which is not to be per formed within one year from the making thereof” is elaborately considered in Warner v. Railway Co., 164 U. S. 418, 17 Sup. Ct. 147. It is there held that this clause of the statute only applies to agreements which, according to the true intenfion of the parties as shown by the terms of their contract, cannot be fully performed within a year, and not to an agreement which may be fully performed within the year, although the time of performance is uncertain, and may probably extend, and may have been expected by the parties to extend, and does in fact extend, beyond the year. Tested by this rule, it is plain that the present agreement falls within the condemnation of the statute. The agreement, by its terms, as found by the master, — and, in my opinion, correctly, — cannot be fully performed until (he expiration of the period of 17 years. It is incapable of full performance, according to the true intent of the parties as disclosed by the agreement, within one year from the making thereof. The ease of Packet Co. v. Sickles, 5 Wall. 580, 595, is decisive of this question. As has been said, the agreement" }, { "docid": "22344515", "title": "", "text": "if, as it was offered to be proved, the contract was not in writing, but. rested in parol. We have referred particularly to the contract in the fore part of this opinion. The question raised is, whether or not it is within the statute of frauds, and therefore void. The law in this district, it is admitted, is a copy of the English statute on the subject. The patent had some twelve years to run after the date of this contract, which was in June, 1844. The words of the statute are: “ That no suit shall be brought to charge any person upon any agreement that was not to be performed in one year, unless there was some memorandum or note in writing of the agreement,” &c. Now, the substance of the contract is, that the defendants are to pay in money a certain proportion of the ascertained value of the fuel saved at stated ihtervals throughout the period of twelve years, if the boat to which the cut-off is attached should last so long. The statute applies to contracts not wholly to he performed within the year. It is insisted, however, that this contract is not within it, because it may, by the happening of ^ certain event., — the loss or destruction of the boat, — terminate within the year. The answer is, that the possibility of defeasance does not make it the less' a contract not to be performed within the year. In Birch v. The Earl of Liverpool, a contract for hire of a coach for five years, for a stipulated price per year, was held to be within the statute, although determinable by either party .at any time within that period. The same principle was again held in Dobson and Another v. Espie. That case was the hiring of a traveller for more than a year, subject to a determination by three months’ notice. Pollock, C. B., in delivering his opinion, stated that the object of the enactment was to prevent contracts not to be performed within the year from being vouched by parol" }, { "docid": "1810562", "title": "", "text": "terminable at the will of either party, which are barred by the statute of frauds. In the latter, the performance contemplated by the contract is employment for the entire fixed term, whereas termination, even at the will of a party, is merely an excuse for non-performance. As explained in American Jurisprudence: [I]t is the general rule that an oral contract of employment terminable at the will of either party in which no definite term longer than a year is agreed upon is not within the provision of the statute of frauds relating to contracts which are not to be performed within a year. Under such a contract of hire, the employee may remain as long as he suits the employer, or until he himself becomes dissatisfied with the position, and it is possible for full performance to be had within a year. # ^ * & & * When, however, an employment contract stipulates for the performance of services under it for more than one year, it is within the infra annum provision of the statute, and must be in writing, although it contains a provision for the termination of the contract at - any time within the year, upon the giving of a prescribed notice. If such contract should be terminated within the year, the result would not be an alternative form of performance, but excusable nonperformance. 72 Am.Jur.2d Statute of Frauds § 40 (1974) (citations omitted). Furthermore, Professors Williston and Lord, in Williston on Contracts, explain that in contradistinction to the rule laid down by the courts in cases involving alternative performances is the principle governing promises not in writing where the contingency is not a true alternative, but an excuse for nonperformance by way of annulment. Oral agreements which are subject to a right of cancellation or defeasance, not by operation of law but by the express terms of the contract, within the period of a year— such as a contract for several years’ service containing a provision permitting termination by either party on a week’s or a month’s notice — are generally held to be within" } ]

[ { "docid": "5832025", "title": "", "text": "be made concerning each incremental level. See, e.g., United States v. Dixon, 71 F.3d 380, 383 (11th Cir.1995); United States v. Thomas, 24 F.3d 829, 834 (6th Cir.1994); United States v. Harris, 13 F.3d 555, 558 (2d Cir.1994); but see United States v. Cash, 983 F.2d 558, 561 (4th Cir.1992). The Guideline here gives instructions concerning the methodology for structuring the departure; it does not require that express findings be made concerning each incremental step. II. We move to defendant’s second argument, that the decision to depart and degree of departure were unreasonable. We review departures from the Sentencing Guidelines under a unitary abuse-of-discretion standard. United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997). “When the question presented is essentially factual, appellate review should be at its most deferential” because departure decisions in such circumstances embody a sentencing court’s traditional exercise of discretion. Id. at 1302-03. “Where the issue is essentially legal, however, appellate review should be plenary.” Id. at 1303. In reviewing a departure from the Guidelines, we must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Id. Our review of the record convinces us that the district court did not abuse its discretion in determining that an upward departure was warranted in this case. Departures from the career offender guideline are authorized where a defendant’s criminal history places him outside the “heartland” of career offenders. Cf. id. at 1304 (applying heartland analysis to downward departure from career offender guideline). The district court permissibly relied upon the defendant’s numerous charges pending for prior offenses and the fact that he had been on trial or parole when he committed the instant offense, to remove him from the heartland of the career offender guideline. See USSG § 4A1.3(d) and (e). The district court provided a sufficient explanation, supported by specific facts" } ]

[ { "docid": "8059282", "title": "", "text": "imprisonment, followed by five years supervised release. DISCUSSION I. Departure from the Guidelines We review a district court’s decision to depart from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997). In Koon, the Court found “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. The Court reasoned that district courts have an “institutional advantage” over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at -, 116 S.Ct. at 2046-47. Nevertheless, the Court also concluded that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at -, 116 S.Ct. at 2047. “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at -, 116 S.Ct. at 2048. We have summarized our analysis as: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). The first inquiry is a legal question, the second is factual. In general, a court must impose a sentence within the guideline range unless it finds “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”" }, { "docid": "404307", "title": "", "text": "invalid factors.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2053-54 (citing Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992)). Herein, the district court did not rely on the SCAMS Act as the sole basis for departure. The sentencing court also found the circumstances of this case were outside the heartland of the offenses for which Mr. Smith was being sentenced. We review this finding to determine' if the district court’s error was harmless. See Fed.R.Crim.P. 52(a). The district court may depart from the guidelines if an aggravating circumstance exists to a degree not adequately taken into consideration by the guidelines. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. A departure is permitted if aspects of the case are “found unusual enough for it to fall outside the heartland of eases in the Guideline.” Koon, 518 U.S. at -, 116 S.Ct. at 2046. A district court’s decision to depart from the guidelines based on the unusual nature of the case is due “substantial deference” because “[w]hether a given factor is present to a degree not adequately considered by the Commission ... [is] determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2046-47. In reviewing a district court’s decision to depart, this Court must evaluate (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. We apply a unitary abuse of discretion standard throughout the Collins analysis. Id.; Koon, 518 U.S. at - - -, 116 S.Ct. at 2047-48. Whether the factual circumstances of the case provide a permissible" }, { "docid": "2063717", "title": "", "text": "may not support a departure, those that are encouraged as a basis for departure, and those that are discouraged. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We review departures from the guidelines under a unitary abuse-of-discretion standard, giving deference to essentially factual questions and plenary review to those that are essentially legal. See United States v. Hannah, 268 F.3d 937, 940 (10th Cir.2001). In determining whether a sentencing court abused its discretion in deciding to depart we must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Id. at 940-41 (quoting United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997)). Only the fact of departure is at issue here, not the degree. The district court in this case departed upward upon concluding that Mr. Concha’s criminal history category under-represented the seriousness of his past conduct. The failure of a defendant’s criminal history category to “adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes” is an encouraged departure factor. U.S.S.G. § 4A1.3. However, we must also assess whether the factual bases upon which the court here relied in finding under-representation are themselves permissible grounds for departure. See Collins, 122 F.3d at 1304-05. The district court expressly grounded its departure decision upon seven instances of foreign criminal" }, { "docid": "16480721", "title": "", "text": "the district court’s upward departure in this case under either standard of review, we may assume without deciding that there is no legal barrier preventing Congress from changing the standard of review and then applying that new standard to a pending appeal.” Id. The district court’s decision to depart upwards was based upon several factors, some of which are encouraged factors under the Guidelines and some of which are unmentioned factors. Most prominently, the district court relied on what it deemed to be the understated nature of defendant’s criminal history category — an “encouraged” factor under U.S.S.G. § 4A1.3. Based on the defendant’s well-documented history of violent misconduct, the district court concluded that category III understated both the seriousness of defendant’s past misconduct and the potential for recidivism, and found an upward departure to category V appropriate. Also, the district court highlighted the prison setting of defendant’s offense and, by inference, the victim’s status as a “vulnerable victim” under U.S.S.G. § 3A1.1 as an additional encouraged factor. In short, the written judgment, presen-tence report, and sentencing transcript provide more than ample support for the district court’s finding that defendant’s offense' fell outside the heartland of typical assault cases under 18 U.S.C. § 113(a). The district court’s upward departure was justified. C. The District Court’s Discretion to Depart Downward Based Upon Defendant’s Pre-Offense Incarceration as an Immigration Detainee “We review a district court’s belief that it lacked the authority for a downward departure under the Sentencing Guidelines under an abuse of discretion standard.” United States v. Coleman, 188 F.3d 354, 357 (6th Cir.1999)(citing Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). Since, however, we are evaluating the district court’s determination that a factor is categorically proscribed, as a matter of law, from consideration under the guidelines, we give no deference to the district court’s analysis because “the abuse of discretion standard includes review to determine whether a court was guided by an erroneous legal conclusion” and “[a] district court by definition abuses its discretion when it makes an error of law.” Id. (citing Koon," }, { "docid": "7770", "title": "", "text": "minor” under U.S.S.G. § 2G2.4(b). II. Standard of Review In United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir.1997), we identified four inquiries that must be made in reviewing departure decisions following the Supreme Court’s significant decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996): [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the Appellant from the applicable Guideline heartland thus warranting departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. Appellant challenges the district court’s decision regarding the first and third of these inquiries. As instructed in Koon, we review departures from the Sentencing Guidelines under a “unitary abuse of discretion” standard. Collins, 122 F.3d at 1302 (citing Koon, 518 U.S. at 96-100, 116 S.Ct. 2035). “A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. However, “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at 100, 116 S.Ct. 2035. III. Impermissible Factors Appellant first contends that the district court used an impermissible factor as a basis for its upward departure. The court noted that the Commission had made “the sexual abuse or exploitation of a minor” a specific offense characteristic for trafficking in child pornography, but not for child pornography possession. This, the court held, was “an oversight” by the Commis sion. Tr. at 60. The court then departed from the child pornography possession guideline, using the exploitation offense characteristic. Appellant disputes the district court’s conclusion, reasoning that it was incorrect to" }, { "docid": "7769", "title": "", "text": "depart upward from § 2G2.4 because the Sentencing Commission had failed to consider the sexual abuse of a minor as a specific offense characteristic for child pornography possession as it had for child pornography trafficking. The district court agreed with the government: “I think it must have been an oversight that Section 4 under 2G2.2 was not also listed ... under 2G2.4.” Tr. at 60. The court then departed from the sentencing range of 24 to 36 months by five levels, sentencing Appellant to 51 months of imprisonment. Appellant objects to the district court’s upward departure on three fronts. First, Appellant contends that the court based its upward departure on an impermissible factor, since the Commission could not have failed to consider the sexual abuse of a minor in such a proximately located offense characteristic. Second, Appellant asserts that his possession of the child pornography was “totally irrelevant” to the allegations of sexual abuse. Third, Appellant argues that his actions were insufficient to constitute “engag[ingj in a pattern of sexual abuse or exploitation of a minor” under U.S.S.G. § 2G2.4(b). II. Standard of Review In United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir.1997), we identified four inquiries that must be made in reviewing departure decisions following the Supreme Court’s significant decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996): [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the Appellant from the applicable Guideline heartland thus warranting departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. Appellant challenges the district court’s decision regarding the first and third of these inquiries. As instructed in Koon, we review departures from the Sentencing Guidelines under a “unitary abuse of discretion” standard. Collins, 122 F.3d at 1302 (citing Koon, 518 U.S. at" }, { "docid": "17752401", "title": "", "text": "the defense that Hernandez had done all he could given his limited intelligence, are factual determinations. We find ample evidence in the record to support the district court’s denial of a two point reduction for acceptance of responsibility, and therefore affirm the district court’s decision. D. Hernandez next argues that the district court erred by using an upward departure to raise his criminal history category under the Sentencing Guidelines from a category I to a category II. We review the district court’s departure for abuse of discretion. See Koon v. United States, 518 U.S. 81, 91, 116 S.Ct. 2035, 2043, 135 L.Ed.2d 392 (1996). This review involves a three-part inquiry. “First, we deferentially review the district court’s determination of whether the facts of a case take it outside the heartland of the applicable guideline.” United States v. Hoffer, 129 F.3d 1196, 1201 (11th Cir.1997). Next, we determine whether the departure factor upon which the district court relied “has been categorically proscribed, is encouraged, encouraged but taken into consideration within the applicable guideline, discouraged, or not addressed by the [Sentencing] Commission.” Id. Finally, we review deferentially the remaining factual issues, including whether the factor relied on by the court to depart upward is present to such a degree as to warrant an upward departure. See id.; see also United States v. Miller, 146 F.3d 1281, 1284 (11th Cir.1998). In departing upward pursuant to U.S.S.G. § 4A1.3 with respect to Hernandez’ criminal history category, the district court concluded that “the defendant’s Criminal History Category I under-represents the seriousness of the defendant’s criminal history and the likelihood that he will commit further crimes.” Specifically, the court identified three incidents of deposit account fraud, for which Hernandez was not convicted, and a fraud Hernandez committed “in violation of the Fair Labor Standards Act while perpetrating the instant offense,” as conduct justifying the upward departure. The court found that this conduct was “similar to that of the instant offense.” According to the court, the fact that this similar conduct did not result in points used to calculate Hernandez’ criminal history category caused that category to" }, { "docid": "23024127", "title": "", "text": "district court’s downward departure imposed pre-Booker). “All of these steps are subject to a unitary abuse of discretion standard.” Whiteskunk, 162 F.3d at 1249. That “unitary abuse-of-discretion standard” involves review to determine that the [district court’s] discretion ... was not guided by erroneous legal conclusions. This standard limits appellate courts’ scope of review, leaving district courts with much of their traditional sentencing discretion. The essential nature of the question presented [on appeal], whether legal or factual, guides our standard of review. In the usual case, where the court’s decision whether to depart rests on factual findings, the district court’s decision is entitled to substantial deference. If, however, the district court’s decision rests primarily on a legal conclusion, for instance whether a factor is a permissible ground for departure, the appellate court’s review is plenary. Id. (quotations, citations, alterations omitted). In addition, [i]n reviewing the district court’s ... departure, we recognize that before Booker these discretionary departures were considered against a mandatory sentencing scheme, while after Booker the guidelines are entirely advisory---[I]n the context of our review of [a] discretionary degree-of-departure question, we are informed by, and must take account of, the fact that the district court would have enhanced discretion upon remand after Booker. Serrata, 425 F.3d at 912 (reviewing pre-Booker downward departure). 2. District court’s decision to depart upward. A sentencing court is permitted to depart from the Guidelines after determining a defendant’s offense level, criminal history category, and the applicable Guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court must distinguish whether the case falls under the category of a “heartland case” or an “unusual case.” See Koon [v. United States, 518 U.S. 81, 93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ]. In Koon, the [Supreme] Court explained the Sentencing Commission intended for sentencing courts to treat each guideline as carving out a “heartland”, a set of typical cases embodying" }, { "docid": "6500769", "title": "", "text": "to the highest level. See U.S.S.G. ch. 3, pt. D. The court here treated each of the three pseudo-counts attributed to a deceased passenger as a separate group with an offense level of 26. It treated each of the four counts attributed to a seriously injured passenger as a separate group with an offense level of 22. Because the offense level for each of the seven groups was within 4 levels of the highest level for any group, under § 3D1.4 there would be 7 units and the offense level would be raised by 5 levels Accordingly, Defendant’s total offense level rose from 26 to 31 and the Guideline sentencing range increased to 108-135 months. The court imposed a prison term of 120 months. Defendant objected to both the justification for and the method of departure. II. Discussion (A) Standard of Review As previously stated, a sentencing court may depart from the Guidelines only because of circumstances “not adequately taken into consideration by the Sentencing Commission.” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Congress has instructed the courts to “consider only the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission” in determining whether the Sentencing Commission has adequately considered a circumstance. 18 U.S.C. § 3553(b). United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997), set out our approach to appellate review of departures from the Sentencing Guidelines: [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon [v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),] must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. We review all four steps of the departure analysis “under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion [of the district court] was not guided" }, { "docid": "16172957", "title": "", "text": "basis to depart downward from the range imposed by the Guidelines. They contend that the disparity between the sentence imposed on Brown and their own sentences cannot be justified under a proper application of the Guidelines. For this reason, the district court should have considered this unjustified disparity in deciding whether to depart from the applicable Guidelines range in imposing their sentences. We review decisions regarding departures from the Guidelines for abuse of discretion. See United States v. Gonzalez-Portillo, 121 F.3d 1122, 1123 (7th Cir.1997). This standard applies “to both factual determinations and ... ‘review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Id. at 1124 (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). In applying this standard, we recall that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point” because “[a] district court by definition abuses its discretion when it makes an error of law.” Koon, 518 U.S. at 100, 116 S.Ct. 2035. 1. Koon and Meza Because defendants’ arguments are based on an understanding of the Supreme Court’s holding in Koon, and our own holding in United States v. Meza, 127 F.3d 545, 550 (7th Cir.1996), we must first review these decisions. In promulgating the Sentencing Guidelines, the Sentencing Commission intended “the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” Koon, 518 U.S. at 93, 116 S.Ct. 2035 (quoting U.S.S.G. ch. 1, pt. A, intro, cmt. 4(b) (1995)). While a court generally must impose a sentence within the applicable Guidelines range, the Sentencing Commission realized that certain cases that for one reason or another were “unusual” would fall outside the heartland. In such atypical cases, the sentencing court must consider whether particular factors warrant a departure from the applicable Guidelines range. See id. at 94, 116 S.Ct. 2035 (“Atypical cases were not ‘adequately taken into consideration,’" }, { "docid": "22923850", "title": "", "text": "those factors as either encouraged or discouraged bases for departure. See Koon v. United States, 518 U.S. 81, 94, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A district court’s decision to depart from the Guidelines is reviewed for abuse of discretion. See United States v. Galante, 111 F.3d 1029, 1034 (2d Cir.1997). In particular, the sentencing court’s factual findings supporting the existence of a permissible factor on which to base a departure are reviewed under the clearly erroneous standard. See 18 U.S.C. § 3742(e); United States v. Broderson, 67 F.3d 452, 458 (2d Cir.1995). Appellate review also includes determining whether a district court’s discretion was guided by an incorrect legal conclusion. See Koon, 518 U.S. at 100, 116 S.Ct. 2035. For example, a district court abuses its discretion when it relies upon an impermissible basis for departure. See id. Whether a factor is a permissible basis for departure is a question of law to which an appellate court need not defer. See id. B. Factors Relied on for Departure In the case at bar, the sentencing court stated: “I’m going to find that there are individual factors here that wouldn’t warrant a doumward departure individually but combined, considered in total, would permit the court to depart downward.” (emphasis added). It relied upon a combination of four factors for granting a three-level downward departure: (1) Payton’s lack of a positive male role model as a youth; (2) his history of drug abuse and failed treatment; (3) his possible ineligibility for credit arising out of his pretrial detention; and (4) a learning disability that limited his educational opportunities. We addi’ess each factor in turn. 1. .The First and Second Factors The Guidelines expressly prohibit a sentencing judge from considering a defendant’s lack of guidance as a youth and similar circumstances, which would include lack of a male role model, see U.S.S.G. § 5H1.12, and a defendant’s history of drug abuse, see id. § 5H1.4. Because a prohibited factor may never serve as a basis for departure, see Koon, 518 U.S. at 95-96, 116 S.Ct. 2035, defendant concedes the district court’s error. The" }, { "docid": "15706818", "title": "", "text": "children. Id. at 25, 27-28. After a short recess, Defendant’s counsel told the court that Defendant’s mother requires 24-hour care and that none of the siblings could provide care for either her or the children. Id. at 28-31. The court then reaffirmed its downward departure and sentenced the Defendant to five months’ imprisonment, five months’ home confinement, and three years’ supervised release. Id. at 15-16, 18, 31-32. DISCUSSION We review a district court’s decision to depart from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. -,---, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied, — U.S.-, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997). In Koon, the Supreme Court found “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. The Court reasoned that district courts have an “institutional advantage” over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at ---, 116 S.Ct. at 2046-47. Nevertheless, the Court also concluded that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at-, 116 S.Ct. at 2047. “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at-, 116 S.Ct. at 2048. As we recently stated, in reviewing departure decisions we employ a unitary abuse of discretion standard, which includes the following inquiries: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d" }, { "docid": "23071635", "title": "", "text": "the vantage point of the district court make this the atypical case. See id. at 951-52. Thus, in determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. In performing this review, Koon .tells us that an appellate court need not defer to the district court’s resolution of the first question, whether a factor is a permissible departure factor under any circumstances, but must give “substantial deference” to the district court’s resolution of the second question, whether “a particular [defendant] is within the heartland given all the facts of the case.” Id. Because Koon did not address the second and third steps of our prior multi-step approach — record support for the factual circumstances underlying the departure and reasonable review of the degree of departure — they remain as before. We emphasize, however, that all four steps of the departure review are subject to a unitary abuse of discretion standard. B. Career Offender Category Departures under § 4A1.3 1. The Decision to Depart As discussed above, a district court is authorized to depart from the Guidelines only if the court finds a mitigating or aggravating factor not adequately taken into account by the Commission. See U.S.S.G. § 5K2.0; 18 U.S.C. § 3553(b). One such circumstance appears in U.S.S.G. § 4A1.3. See Maldonado-Campos, 920 F.2d at 719, n. 2 (holding that departures under section 4A1.3 are a subset of departures under section 5K2.0). Section 4A1.3 permits a departure when “reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3, p.s. In deciding whether to depart under section 4A1.3, the district court must specifically" }, { "docid": "23458049", "title": "", "text": "WOLLMAN, Chief Judge. Kenneth Goings appeals the sentence imposed pursuant to his plea of guilty to involuntary manslaughter, challenging the district court’s decision increasing his criminal history category, departing upward for injuries arising out of his offense of involuntary manslaughter, and denying his request for a downward adjustment for acceptance of responsibility. We affirm. I. Goings was indicted pursuant to 18 U.S.C. §§ 1112 and 1153 for involuntary manslaughter after he lost control of his vehicle in Indian country, killing one passenger and injuring himself and two others. At the time of the accident, he had a blood-alcohol level well above the legal limit and was racing another vehicle on a narrow road. Goings turned himself in, pleaded not guilty, and was released for enrollment in an alcohol treatment program, which he did not complete. Follow ing his subsequent arrest for violation of release conditions, Goings pled guilty and was sentenced to 41 months’ imprisonment. He now appeals this sentence. II. A. We turn first to the two upward departures. We review sentencing departures under a unitary abuse-of-discretion standard. See Koon v. United States, 518 U.S. 81, 96-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Washington, 109 F.3d 459, 462 (8th Cir. 1997). Although this standard is “unitary,” it is also nuanced: while acknowledging that departure questions are fact-intensive, Koon recognized that appellate courts owe no deference to district courts concerning issues such as mathematical errors in applying the guidelines or consideration of factors that the guidelines classify as irrelevant. See Koon, 518 U.S. at 98, 116 S.Ct. 2035 (mathematical errors), 100 (“The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”). 1. Goings contends that the district court improperly shifted his criminal history category from III to category IV. We disagree. The sentencing guidelines permit courts to increase a defendant’s criminal history category where “reliable information indicates” that the presumptive category “does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” See U.S.S.G. § 4A1.3" }, { "docid": "23541054", "title": "", "text": "departure because of exceptional family circumstances. In conducting our review, we must acknowledge, “Koon made explicit that in promulgating the Guidelines, Congress did not intend to vest in appellate courts wide-ranging authority over district court sentencing decisions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997) (quotation omitted). “Rather, Congress meant to establish^] limited appellate review, where district courts retain much of their traditional sentencing discretion.” Id. (emphasis supplied) (quotations omitted). It is our role to “review departures under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion Tof the district court] was not guided by erroneous legal conclusions.’ ” Id. (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). More specifically, we must make four determinations: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon are sufficient to remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. See id. at 1303. First, the Guidelines tell us that family circumstances and responsibilities are a permissible but discouraged factor. See USSG § 5H1.6. Therefore, a district court may depart based on family circumstances “only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon v. United States, 518 U.S. 81, 94,116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). This requirement blends the first two factors for appellate review. Therefore, on the second determination we question whether Mr. Gauvin’s family circumstances remove him from the applicable Guideline heartland. We give the district court “substantial deference” in resolving “whether a particular defendant is within the heartland given all the facts of the case.” Collins, 122 F.3d at 1303 (quotations omitted). We hold the district court did not err in concluding Mr. Gauvin’s crime was outside the heartland. “The Sentencing Guidelines allow for a downward departure in the atypical case where a" }, { "docid": "23541053", "title": "", "text": "disagreed with Mr. Gau-vin’s defense that he lacked the requisite intent to commit the crime, that does not undermine the good faith in which the district court found this defense was asserted. See Rec. vol. VII, at 8-9. Here, Mr. Gauvin argued that he did not intend, while drunk and scared, to cause injury to others. Further, he contended that his drunkenness rendered him incapable of forming the requisite mens rea. This defense — essentially a challenge to the applicability of the statute to his conduct, see USSG § 3E1.1, comment, (n.2) — does not as a matter of law preclude application of the guideline. Although we recognize that such adjustments are “rare,” id., and might not have reached the same decision, in light of the deference afforded the sentencing judge, we hold the district court did not err in granting a downward departure for acceptance of responsibility. 2. The district court did not err in departing downward for exceptional family circumstances. The district court also found that Mr. Gauvin merited a three offense-level downward departure because of exceptional family circumstances. In conducting our review, we must acknowledge, “Koon made explicit that in promulgating the Guidelines, Congress did not intend to vest in appellate courts wide-ranging authority over district court sentencing decisions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997) (quotation omitted). “Rather, Congress meant to establish^] limited appellate review, where district courts retain much of their traditional sentencing discretion.” Id. (emphasis supplied) (quotations omitted). It is our role to “review departures under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion Tof the district court] was not guided by erroneous legal conclusions.’ ” Id. (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). More specifically, we must make four determinations: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon are sufficient to remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and" }, { "docid": "23569333", "title": "", "text": "unitary abuse of discretion “which includes review to determine that the discretion of the district court was not guided by exroneous legal conclusions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation and alteration omitted). In determining whether the district court abused its discretion this Court must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Id. Here, the Government claims only that the District Court exred in finding that the Appellants’ susceptibility to abuse in prison removed them from the heartland of cases thus warranting departure. The fact that police officers are susceptible to abuse in prison does not, alone, warrant a downward departure. See Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Indeed, in many instances, committing a crime while acting under color of law will result in a higher sentence' — as it did in this case — rather than a lower sentence. See U.S.S.G. § 2H1.1(b)(1) (permitting enhancement when offense is committed under color of law). However, when a district court determines that the defendants’ susceptibility to abuse is compounded by “widespread publicity and emotional outrage ... [this] is just the sort of determination that must be accorded deference by the appellate courts.” Koon, 518 U.S. at 112, 116 S.Ct. 2035. Relying on Koon, the District Court found that this case was outside the heartland of the Guidelines because it was part of a vast investigation, spanning several years, that involved not only the abuse of inmates by correctional officers, but also the conspiracy to abuse inmates. In addition to evidence of the size and scope of the investigation, the District Court was presented with other evidence that this case was outside the heartland of cases. For example, there was evidence that the investigation was reported on in" }, { "docid": "23458050", "title": "", "text": "a unitary abuse-of-discretion standard. See Koon v. United States, 518 U.S. 81, 96-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Washington, 109 F.3d 459, 462 (8th Cir. 1997). Although this standard is “unitary,” it is also nuanced: while acknowledging that departure questions are fact-intensive, Koon recognized that appellate courts owe no deference to district courts concerning issues such as mathematical errors in applying the guidelines or consideration of factors that the guidelines classify as irrelevant. See Koon, 518 U.S. at 98, 116 S.Ct. 2035 (mathematical errors), 100 (“The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”). 1. Goings contends that the district court improperly shifted his criminal history category from III to category IV. We disagree. The sentencing guidelines permit courts to increase a defendant’s criminal history category where “reliable information indicates” that the presumptive category “does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” See U.S.S.G. § 4A1.3 (policy statement); United States v. Drapeau, 110 F.3d 618, 620 (8th Cir.1997); Washington, 109 F.3d at 462. In determining whether departure is warranted in a particular case, district courts may consider the similarity of past offenses to the instant offense and may reasonably conclude that there exists a heightened need for deterrence or that leniency has not been effective. See United States v. Estrada, 965 F.2d 651, 653-54 (8th Cir.1992); United States v. Lang, 898 F.2d 1378, 1380 (8th Cir.1990). It is also permissible for district courts to take into account any “evidence of obvious incorrigibility,” including ongoing behavior patterns observed subsequent to the instant indictment. See United States v. Cook, 972 F.2d 218, 222 (8th Cir.1992). The district court based its decision to increase Goings’s criminal history category on the likelihood that Goings would commit other crimes in light of the similarity of past offenses to the instant offense. Before his indictment for involuntary manslaughter, Goings had been convicted of various crimes on seven previous occasions. Because each of these prior convictions resulted in" }, { "docid": "6500770", "title": "", "text": "has instructed the courts to “consider only the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission” in determining whether the Sentencing Commission has adequately considered a circumstance. 18 U.S.C. § 3553(b). United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997), set out our approach to appellate review of departures from the Sentencing Guidelines: [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon [v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),] must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. We review all four steps of the departure analysis “under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions.’” Id. at 1302 (quoting Koon, 518 U.S. at 100, 116 S.Ct. 2035). “The deference that is due depends on the nature of the question presented.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. “When the question presented is essentially factual, appellate review should be at its most deferential.” Collins, 122 F.3d at 1302. But, “[w]hen the issue is essentially legal, ... appellate review should be plenary.” Id. at 1303. (B) Departure Factors The first question — whether the factual circumstances supporting a departure are permissible departure factors — is essentially a legal one, which we review de novo. No deference is due the district court’s decision on this issue. Id. at 1303. At the outset we must determine what factors the district court relied upon for departure. Defendant argues that in addition to relying on the deaths and serious injuries, the court relied upon his disregard for human life and dignity as well as his excessive recklessness. Defendant points out that at the sentencing hearing the court observed that Defendant displayed" }, { "docid": "23569332", "title": "", "text": "125 S.Ct. at 769; United States v. Lynch, 397 F.3d 1270, 1272 (10th Cir.2005). With respect to this claimed error, the Government suffers the same fate as the Appellants in their claim of error related to the discovery of alleged promises made to Ms. Gutierrez in exchange for her testimony. The District Court’s ruling on this issue is conspicuously missing from the transcript and the Government has otherwise failed to point to the place in the record where this discussion is found. Because we must be informed by the District Court’s findings of fact and its application of the Guidelines to the facts, the Government’s failure to ensure that the record has been supplemented with the relevant transcripts is fatal to its claim. See 10th Cir. R. 28.2(C)(2), (3); United States v. LaHue, 261 F.3d 993, 1014-1015 (10th Cir. 2001). Next, the Government argues that the District Court erred in granting each Appellant a two-level downward departure based on their susceptibility to abuse in prison under U.S.S.G. § 5K2.0. We review downward departures under a unitary abuse of discretion “which includes review to determine that the discretion of the district court was not guided by exroneous legal conclusions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation and alteration omitted). In determining whether the district court abused its discretion this Court must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Id. Here, the Government claims only that the District Court exred in finding that the Appellants’ susceptibility to abuse in prison removed them from the heartland of cases thus warranting departure. The fact that police officers are susceptible to abuse in prison does not, alone, warrant a downward departure. See Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Indeed, in many" } ]

[ { "docid": "22710703", "title": "", "text": "with all relevant circumstances. Unavoidably, this is a matter of judgment, but in our view the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government’s case. The United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time petitioners acknowledge that they must go forward with specific evidence demonstrating taint. “[T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.” Nardone v. United States, 308 U. S. 338, 341 (1939). With this task ahead of them, and if the hearings are to be more than a formality and petitioners not left entirely to reliance on government testimony, there should be turned over to them the records of those overheard conversations which the Government was not entitled to use in building its case against them. Adversary proceedings are a major aspect of our system of criminal justice. Their superiority as a means for attaining justice in a given case is nowhere more evident than in those cases, such as the ones at bar, where an issue must be decided on the basis of a large volume of factual materials, and after consideration of the many and subtle interrelationships which may exist among the facts reflected by these records. As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well-informed advocacy necessarily becomes less justifiable. Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge, through lack of" } ]

[ { "docid": "3614116", "title": "", "text": "unlawful protective sweep. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). They rely on United States v. Allard, 634 F.2d 1182 (9th Cir.1980) (Allard II), and United States v. Lomas, 706 F.2d 886 (9th Cir.1983). We find Allard II and Lomas factually inapplicable. We conclude that United States v. Allard, 600 F.2d 1301 (9th Cir.1979) (Al-lard I), does apply and does not require suppression. Allard II and Lomas govern the determination of taint where an unlawful entry is followed by a continuing unlawful seizure. Allard II, 634 F.2d at 1187; Lomas, 706 F.2d at 894. Neither Allard II nor Lomas applies to the facts at bar because there is no evidence of any continuing unlawful seizure. The unlawful conduct in the present case was confined to the protective sweep for additional suspects, which lasted only two to three minutes. The agents seized nothing, left the house as soon as the sweep was completed, and reentered only with Spetz after he had elected to go inside the house to await arrival of the search warrant. To determine whether the illegal entry alone tainted the evidence obtained under the warrant, we turn to Allard I. There we concluded that such evidence is not tainted if the government learned of it from an independent source. 600 F.2d at 1305. We also observed that “[w]hile the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free of taint.” Id. at 1305 (quoting United States v. Choate, 576 F.2d 165, 186 (9th Cir.) (Hufstedler, J., concurring in part and dissenting in part), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978)). In the present case, the government relied on some of the observations made during the illegal entry in its affidavit for the search warrant. We conclude" }, { "docid": "6283630", "title": "", "text": "an illegal search. United States v. Choate, 576 F.2d 165, 186 (9th Cir. 1978); United States v. Cella, 568 F.2d 1266, 1285 (9th Cir. 1977) (as amended Jan. 18, 1978). Judge Hufstedler, concurring and dissenting in Choate, explained: While the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free from taint. 576 F.2d at 186. On the record before us, we cannot determine whether the defendants estab lished the requisite “factual nexus between the illegality and the challenged evidence.” We have examined the warrant affidavit and find in it no reference to anything observed in Room 611 by DEA agents. Nevertheless i the agents did not seek the warrant until after they had entered the room, questioned Berg, and were denied consent to search. Agent Bagby testified that the government had learned of Allard’s connection with Room 611 that morning, but then had no reason to seek a search warrant for the room. Later, agents arrested Richmond and searched his home without finding the other 12 ounces of cocaine. Agents Bagby and White entered Room 611 about the time other agents began to search Richmond’s residence and Bagby called for the warrant before the search of Richmond’s residence was complete. Agent Bagby testified that he went to Room 611 to continue the drug investigation, not to search for drugs. His testimony rings true because at that time, the agents believed the drugs to be at Richmond’s home. However, he also testified that he determined that he had “probable cause” to stay in the room after requesting the warrant, because of Berg’s nervous reaction to the news of Allard’s arrest and the request to search the room. Agent Bagby did not explain what motivated him to seek the warrant to search Room 611. It is not clear at what point his intention to investigate" }, { "docid": "2262973", "title": "", "text": "F.3d at 1131. Nava-Ramirez next states that “[t]he defendant then bears the burden of demonstrating ‘a factual nexus between the illegality and the challenged evidence.’ ” Id. (quoting United States v. Kandik, 633 F.2d 1334, 1335 (9th Cir.1980)). While I agree with this statement as a general principle, I disagree with the characterization in Nava-Ramirez of this “second showing” and the application of it to the defendant there, as I will discuss in a moment. The opinion then points out that “only if the defendant has made these two showings must the government prove that the evidence sought to be suppressed is not ‘fruit of the poisonous tree.’ ” Id. Applying its version of the “factual nexus” portion of the fruits analysis, the court declared: Nava-Ramirez ... argues that at the moment [the officer] concluded his search of the passenger compartment without finding any evidence indicating Nava-Ramirez was involved in illegal activity, his continued detention became unlawful. Even assuming this argument is correct, however, Nava-Ramirez has failed to satisfy his burden of proving a factual nexus between his detention and the evidence ultimately discovered in the trunk. At a minimum, a defendant must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct. See Shareef, 100 F.3d at 1508. At the suppression hearing, Nava-Ramirez put on no evidence to demonstrate that had he, at some point after the passenger compartment search was completed but before the trunk search began, requested permission or otherwise attempted to depart the scene, he would have been able to leave in Wald’s car. In the absence of some supportive proof, this court cannot simply speculate that Wald would have given Nava-Ramirez permission to take his car. Because Nava-Ramirez has failed to meet his burden of proving a factual nexus between his detention and the evidence found in the trunk, this court cannot suppress that evidence as the fruit of the purportedly unlawful detention. Id. (emphasis added). This analysis is incorrect under Supreme Court and Tenth Circuit precedent for four reasons." }, { "docid": "2262980", "title": "", "text": "factual scenarios, the Ninth Circuit held it was proper to require the defendants in these cases to demonstrate exactly what evidence they believed was tainted and why. Cases involving complicated factual scenarios in which it is difficult to link particular illegal government conduct to the evidence sought to be suppressed are markedly different from a traffic stop and detention where the car and its occupants are stopped at the same time, detained at the same time, and the search of the car which results in the illegal evidence is conducted shortly after the primary illegality. To impose a heightened factual nexus test like the one imposed by the Ninth Circuit in Kandik, Allard, and Cella on a vehicular stop case is ludicrous. No case in our circuit has ever done so and the Ninth Circuit does not impose this kind of factual nexus test in its own vehicular stop cases. This Ninth Circuit line of cases is derived from two Supreme Court cases which have mentioned a “factual nexus.” Significantly, both cases were wiretap cases. In Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), the Court stated that: the burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction [the primary illegality] ... Once that is established ... the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. Nardone, 308 U.S. at 341, 60 S.Ct. 266. Like the Ninth Circuit cases, the Supreme Court was faced with a case where 72 of some 500 intercepted telephone messages in an ongoing investigation by the government into alcohol smuggling by organized crime constituted much of the proof against the defendant and the police had committed an illegal wiretap early into the investigation. See United States v. Nardone, 90 F.2d 630, 630-31 (2d Cir.1937). Additionally, the Court was concerned that" }, { "docid": "2262976", "title": "", "text": "concept and its application in cases with complicated factual circumstances in which the connection between the. wrongful conduct of the police and the evidence sought to be suppressed was not readily apparent. In Nava-Ramirez, to the contrary, there was a direct and obvious link between the illegal detention of the car and the discovery of contraband in the trunk. For example, Kandik, 633 F.2d 1334, involved a complex conspiracy between three men to print counterfeit money. One of the men was arrested by federal investigators and cooperated with them in exchange for leniency. He implicated Kandik as one of the counterfeiters and told the investigators that Kandik had said he took the counterfeiting equipment to Mount Lemon and burned it. Kandik and his attorney subsequently met with a prosecutor to discuss a plea agreement. While maintaining his innocence, Kandik told prosecutors that he might be able to procure the counterfeiting plates. Plea negotiations broke down and the prosecutor then used the information gained from Kandik and the other conspirator to obtain a warrant to search Kandik’s parents’ cabin on Mount Lemon. Various evidence was seized. The district court refused to admit the evidence, viewing it as fruit of the poisonous tree since the warrant was based on information obtained during the plea negotiations. At trial, the government offered no evidence from the search. Instead, it put witnesses on the stand whose testimony, put together, led to the conclusion that Kandik had the plates at a cabin and that Kandik had access to a cabin in Mount Lemon. Kandik filed various motions seeking to force the government to prove that the testimony of these witnesses was not tainted by the illegal search, all of which motions were denied by the district court. This issue was appealed to the Ninth Circuit. The Ninth Circuit held it was proper for Kandik to be required to establish a “factual nexus” between the illegal search and the evidence presented by the government at trial. Id. at 1335. The court concluded that Mr. Kandik did not meet his burden in this regard. Id. at 1336. In" }, { "docid": "23081179", "title": "", "text": "significantly to direct the investigation toward the specific evidence sought to be suppressed.” Cales, 493 F.2d at 1216 (emphasis added). And although it is by no means clear precisely what constitutes “significant direction” sufficient to trigger the exclusion remedy, courts have deemed it probative whether the initial illegality “led directly to any of the evidence actually used against the defendant at trial,” Carsello, 578 F.2d at 203 (emphasis added), or, to put the matter slightly differently, whether the government’s evidence was the “direct result” of an unlawful search or seizure, Johns, 891 F.2d at 245. On the other hand, it is not sufficient in demonstrating taint that an unlawful wiretap „ “may have been a factor in the decision to ‘target’” a specific defendant, Cales, 493 F.2d at 1216, or that an illegal search uncovers the alleged perpetrator’s identity, and therefore “directs attention to a particular suspect,” Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir.1978). The nexus between the original illegality and the specific evidence subject to challenge must be a close one. The standard for suppression under the “attenuated basis” exception is slightly different when the evidence sought to be suppressed is testimonial, rather than documentary. Courts require “a closer, more direct link between the illegality and [live-witness] testimony” than they demand for the exclusion of documentary evidence. Ceccolini, 435 U.S. at 278, 98 S.Ct. 1054. In other words, “the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.” Id. at 280, 98 S.Ct. 1054. We have held that the appropriate inquiry when dealing with live witnesses is whether “[t]hey testified without coercion” and whether “the fruits of the search ... induce[d] their testimony.” United States v. Kandik, 633 F.2d 1334, 1336 (9th Cir.1980). With these principles in mind, we turn to the disputed evidence in this ease. To recap, the voicemail message, which the district court concluded had been illegally “intercept-, ed,” stated," }, { "docid": "2262978", "title": "", "text": "its analysis, the court noted that “[t]he Government must prove that particular evidence or testimony is not fruit of the poisonous tree, but a defendant has the initial burden of establishing a factual nexus between the illegality and the challenged evidence.” Id. at 1335. In support of this statement, which is the statement cited in Nava-Ramirez, the court cited United States v. Allard, 600 F.2d 1301, 1305 (9th Cir.1979), and United States v. Cella, 568 F.2d 1266, 1284-85 (9th Cir.1977). In Allard, the Ninth Circuit held that the defendant was required to prove a factual nexus when seeking to suppress evidence seized in an illegal search of a hotel room. The search of the room was warrantless, without probable cause, and without exigent circumstance. Allard, 600 F.2d at 1302-03. The district court therefore granted a motion to suppress the evidence. The Ninth Circuit remanded the case for further proceedings to determine whether the defendant had established “the requisite factual nexus between the illegality and the challenged evidence.” Id. at 1305-06 (citations omitted). In Cella, the Ninth Circuit held it appropriate to require a defendant to establish a factual nexus between the initial illegal action of the police and the evidence sought to be suppressed. Cella, 568 F.2d at 1270-77. The case involved a complex scheme to misappropriate funds from hospitals. Id. at 1269. The defendants argued that if any information illegally obtained “causes the government to intensify its investigation or if it gives an impetus or direction toward what is to be focused on by the government, then all evidence thereafter produced must be suppressed.” Id. at 1285. The court rejected this argument. Id. at 1285-86. These Ninth Circuit cases are significantly different factually from both Nava-Ramirez and the instant case. Allard and Celia involved ongoing investigations by police. Defendants and co-conspirators were detained and arrested at different times. In Celia, in particular, the issue was whether, given the mounds of evidence obtained by the government, the defendants were entitled to suppress all of that evidence because of one illegal act by the government early in the investigation. Given these" }, { "docid": "2262974", "title": "", "text": "nexus between his detention and the evidence ultimately discovered in the trunk. At a minimum, a defendant must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct. See Shareef, 100 F.3d at 1508. At the suppression hearing, Nava-Ramirez put on no evidence to demonstrate that had he, at some point after the passenger compartment search was completed but before the trunk search began, requested permission or otherwise attempted to depart the scene, he would have been able to leave in Wald’s car. In the absence of some supportive proof, this court cannot simply speculate that Wald would have given Nava-Ramirez permission to take his car. Because Nava-Ramirez has failed to meet his burden of proving a factual nexus between his detention and the evidence found in the trunk, this court cannot suppress that evidence as the fruit of the purportedly unlawful detention. Id. (emphasis added). This analysis is incorrect under Supreme Court and Tenth Circuit precedent for four reasons. First, it applied a heightened “factual nexus” test, derived from Ninth Circuit and Supreme Court precedent in factually complicated cases that is inapposite to simple vehicular stop cases in this circuit. Second, its analysis of the evidence as fruit of the illegal detention distinguishes between the driver and the owner of the car, thus confusing standing analysis with “fruit of the poisonous tree” analysis. Third, it considered the “primary illegality,” see supra at 1131, to be the search of the car, whereas the primary illegality was in fact the detention of the car and its occupants. Fourth, it forced the defendant to prove that he attempted to prevent the police from illegally searching the car by seeking to remove it from the site, which flies in the face of both our precedent and the policy reasons underlying the exclusionary rule. I will explain each of these points in turn. First, the case which Nava-Ramirez cited for its “factual nexus” test, Kandik, is one of a series of Ninth Circuit cases dealing with the “factual nexus”" }, { "docid": "8842621", "title": "", "text": "F.2d 1370, 1375-76 (nexus between illegally seized evidence and that sought to be suppressed must be shown irrespective of the degree of police illegality); United States v. Cales (9th Cir. 1974) 493 F.2d 1215, 1215-16; United States v. Brandon (9th Cir. 1972) 467 F.2d 1008, 1010 (test is not whether a “but for” relationship exists between the illegal search and later investigation but whether its fruits tended to significantly direct that investigation to the evidence in question); United States v. Bacall (9th Cir. 1971) 443 F.2d 1050, 1055-61 (original illegality must “in fact” lead to specific evidence contested); Durham v. United States (9th Cir. 1968) 403 F.2d 190. See also United States v. Pike (5th Cir. 1975) 523 F.2d 734; United States v. Fried-land (2d Cir. 1971) 441 F.2d 855.) While the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free from taint. (United States v. Cella, supra, contains a thorough discussion of this point.) Choate did not establish any factual or logical nexus between the BNE report and the subsequent evidence uncovered by Williams and Roach as to Choate’s assets and expenditures, except for the Farmers and Merchants Bank statement. (Alderman v. United States (1969) 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176; United States v. Cella, supra, 368 F.2d at 1284; United States v. Sand, supra, 541 F.2d at 1375-76.) While that bank statement should, of course, be suppressed, and any evidence as to that account’s use as a source of Choate’s expenditures, it cannot be deemed to taint the other evidence of Choate’s expenditures which was independently discovered through the mail cover, state motor vehicle records, and other sources. II The Mail Cover A mail cover is a procedure by which the United States Postal Service segregates all mail sent to a particular addressee and records all information" }, { "docid": "23077491", "title": "", "text": "to be in the form of a sworn affidavit, unsworn letters detailing the scope of the government’s inquiry usually have been accepted. See United States v. Williams, 580 F.2d at 585 n. 38. The statute does not require the government to deny the claimant’s allegations through live witness testimony, but where such testimony is presented, it is accorded greater weight than affidavits or unsworn letters. See, e.g., In re Grand Jury, 524 F.2d 209, 216 (10th Cir.1975). If the government affirms that illegal electronic surveillance of the claimant has taken place, the government must provide to the claimant the tapes or transcripts of the intercepted communications. See Alderman v. United States, 394 U.S. 165, 182-83, 89 S.Ct. 961, 971-72, 22 L.Ed.2d 176 (1969). Only the claimant’s own conversations or those which took place on his premises must be disclosed and turned over by the government; the trial court has discretion to determine whether additional discovery should be granted. Id. at 185, 89 S.Ct. at 972; United States v. Williams, 580 F.2d at 583-85. The claimant then can challenge as tainted evidence obtained as a result of those specific intercepted communications. See Alderman, 394 U.S. at 176, 180-81, 89 S.Ct. at 968, 970-71; United States v. Williams, 580 F.2d at 584 n. 23. “The question as stated in Wong Sun v. United States, 371 U.S. 471, 488 [83 S.Ct. 407, 417, 9 L.Ed.2d 441] (1963), is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Alderman, 394 U.S. at 180-81, 89 S.Ct. at 970; see 18 U.S.C. §§ 3504(a), 2515, 2518(10)(a)(i). At the taint hearing, the claimant has the initial burden of coming forward with specific evidence demonstrating taint. See Alderman, 394 U.S. at 183, 89 S.Ct. at 972; United States v. Buck, 548 F.2d 871, 874 (9th Cir.1977). The government may then avoid a finding of taint, however, by demonstrating by a preponderance of the evidence that it acquired the evidence" }, { "docid": "5946801", "title": "", "text": "83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920)), the Allard I court looked to three prior Ninth Circuit cases for guidance. In United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971), the court held that even if a subsequent search was not “wholly independent” of an unlawful seizure, the seized items were nonetheless not “tainted” if the evidence was obtained without resort to any knowledge gained from the illegal search or at least the effect of any such knowledge was “de minimis.” Id. at 1057-59, cited in Allard I, 600 F.2d at 1305. Moreover, if the illegally obtained evidence “merely intensified” a subsequent investigation, suppression was not warranted. Allard I, 600 F.2d at 1305 (citing United States v. Choate, 576 F.2d 165, 186 (9th Cir. 1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) (Hufstedler, J., concurring and dissenting) and United States v. Cella, 568 F.2d 1266, 1285 (9th Cir. 1977). The Allard I court cited with approval the analysis of the allegation of the burden of proof with regard to an “independent source” claim set forth by Judge Hufstedler in United States v. Choate, supra, at 186: While the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free from taint. (Emphasis added.) Because the trial court had suppressed the evidence upon a showing that the initial entry was illegal, the record before the Allard I court did not demonstrate whether or not the defendants had established “the requisite ‘factual nexus between the illegality and the challenged evidence.’ ” 600 F.2d at 1306 (fn. omitted). Since “the question of taint was not fully explored below,” id., the" }, { "docid": "5946802", "title": "", "text": "and United States v. Cella, 568 F.2d 1266, 1285 (9th Cir. 1977). The Allard I court cited with approval the analysis of the allegation of the burden of proof with regard to an “independent source” claim set forth by Judge Hufstedler in United States v. Choate, supra, at 186: While the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free from taint. (Emphasis added.) Because the trial court had suppressed the evidence upon a showing that the initial entry was illegal, the record before the Allard I court did not demonstrate whether or not the defendants had established “the requisite ‘factual nexus between the illegality and the challenged evidence.’ ” 600 F.2d at 1306 (fn. omitted). Since “the question of taint was not fully explored below,” id., the court remanded the case to the district court to determine “whether the evidence the government seeks to admit was in fact tainted by the illegal entry,” id. at 1302. II FACTS As the Allard I court recounted and as facts elicited on remand further reveal, one group of government agents had gone to appellant’s hotel room while another group was conducting a lawful search at the home of a confederate. The first group of agents entered the hotel room and determined to “stay there whatever Mr. Berg [the occupant of the room] did or said,” and to not allow Berg to leave, or even go to the bathroom alone, “no sir!” These agents were subsequently reinforced by two additional agents. Although the agents may have originally gone to the hotel room to “continue their investigation,” once inside the room they decided that they had “probable cause to stay there,” and that a search warrant should be obtained. One of the agents went to call the United States Attorney to ask for a search warrant. At" }, { "docid": "17545297", "title": "", "text": "425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), that a depositor has no standing to challenge an IRS summons directed at his bank. Id. at 445, 96 S.Ct. 1619. Hence, the district court was correct in denying the motion to suppress. III. Taint Hearing. Sand and Scully assign several errors in the manner in which the district court conducted its suppression hearing. First, they contend that they were not given the opportunity, guaranteed them by Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, to demonstrate that evidence that the government used against them, not itself illegally obtained, was discovered through the exploitation of an illegal search. See Wong Sun v. United States, 1963, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441. Second, they argue that they showed a sufficient nexus between the evidence illegally obtained and that which they sought to suppress to compel the government to come forward to demon strate lack of taint. Finally, they claim that the district court improperly deferred the question of taint to a post-trial hearing which was never held. The record does not support the first and third contentions. The district court held a lengthy suppression hearing which consumed the better part of three days. The question of taint was repeatedly raised and resolved either by a ruling from the bench or by a concession by one of the parties. Contrary to the defendants’ statements in their briefs before this court, the district judge did not defer to a post-trial hearing questions of taint which could have been resolved earlier. The court simply stated that although the defendants had not demonstrated a sufficient connection between a prior illegal search and the evidence sought to be suppressed, the matter could be raised anew if evidence of taint appeared during the trial. No post-trial hearing was held, but defendants did not ask for such a hearing. They seize upon an entry on the docket sheet as evidence that they renewed their motion for a suppression hearing after the jury was dismissed. It states: March 8" }, { "docid": "2262977", "title": "", "text": "Kandik’s parents’ cabin on Mount Lemon. Various evidence was seized. The district court refused to admit the evidence, viewing it as fruit of the poisonous tree since the warrant was based on information obtained during the plea negotiations. At trial, the government offered no evidence from the search. Instead, it put witnesses on the stand whose testimony, put together, led to the conclusion that Kandik had the plates at a cabin and that Kandik had access to a cabin in Mount Lemon. Kandik filed various motions seeking to force the government to prove that the testimony of these witnesses was not tainted by the illegal search, all of which motions were denied by the district court. This issue was appealed to the Ninth Circuit. The Ninth Circuit held it was proper for Kandik to be required to establish a “factual nexus” between the illegal search and the evidence presented by the government at trial. Id. at 1335. The court concluded that Mr. Kandik did not meet his burden in this regard. Id. at 1336. In its analysis, the court noted that “[t]he Government must prove that particular evidence or testimony is not fruit of the poisonous tree, but a defendant has the initial burden of establishing a factual nexus between the illegality and the challenged evidence.” Id. at 1335. In support of this statement, which is the statement cited in Nava-Ramirez, the court cited United States v. Allard, 600 F.2d 1301, 1305 (9th Cir.1979), and United States v. Cella, 568 F.2d 1266, 1284-85 (9th Cir.1977). In Allard, the Ninth Circuit held that the defendant was required to prove a factual nexus when seeking to suppress evidence seized in an illegal search of a hotel room. The search of the room was warrantless, without probable cause, and without exigent circumstance. Allard, 600 F.2d at 1302-03. The district court therefore granted a motion to suppress the evidence. The Ninth Circuit remanded the case for further proceedings to determine whether the defendant had established “the requisite factual nexus between the illegality and the challenged evidence.” Id. at 1305-06 (citations omitted). In Cella, the" }, { "docid": "2262979", "title": "", "text": "Ninth Circuit held it appropriate to require a defendant to establish a factual nexus between the initial illegal action of the police and the evidence sought to be suppressed. Cella, 568 F.2d at 1270-77. The case involved a complex scheme to misappropriate funds from hospitals. Id. at 1269. The defendants argued that if any information illegally obtained “causes the government to intensify its investigation or if it gives an impetus or direction toward what is to be focused on by the government, then all evidence thereafter produced must be suppressed.” Id. at 1285. The court rejected this argument. Id. at 1285-86. These Ninth Circuit cases are significantly different factually from both Nava-Ramirez and the instant case. Allard and Celia involved ongoing investigations by police. Defendants and co-conspirators were detained and arrested at different times. In Celia, in particular, the issue was whether, given the mounds of evidence obtained by the government, the defendants were entitled to suppress all of that evidence because of one illegal act by the government early in the investigation. Given these factual scenarios, the Ninth Circuit held it was proper to require the defendants in these cases to demonstrate exactly what evidence they believed was tainted and why. Cases involving complicated factual scenarios in which it is difficult to link particular illegal government conduct to the evidence sought to be suppressed are markedly different from a traffic stop and detention where the car and its occupants are stopped at the same time, detained at the same time, and the search of the car which results in the illegal evidence is conducted shortly after the primary illegality. To impose a heightened factual nexus test like the one imposed by the Ninth Circuit in Kandik, Allard, and Cella on a vehicular stop case is ludicrous. No case in our circuit has ever done so and the Ninth Circuit does not impose this kind of factual nexus test in its own vehicular stop cases. This Ninth Circuit line of cases is derived from two Supreme Court cases which have mentioned a “factual nexus.” Significantly, both cases were wiretap cases." }, { "docid": "2262975", "title": "", "text": "First, it applied a heightened “factual nexus” test, derived from Ninth Circuit and Supreme Court precedent in factually complicated cases that is inapposite to simple vehicular stop cases in this circuit. Second, its analysis of the evidence as fruit of the illegal detention distinguishes between the driver and the owner of the car, thus confusing standing analysis with “fruit of the poisonous tree” analysis. Third, it considered the “primary illegality,” see supra at 1131, to be the search of the car, whereas the primary illegality was in fact the detention of the car and its occupants. Fourth, it forced the defendant to prove that he attempted to prevent the police from illegally searching the car by seeking to remove it from the site, which flies in the face of both our precedent and the policy reasons underlying the exclusionary rule. I will explain each of these points in turn. First, the case which Nava-Ramirez cited for its “factual nexus” test, Kandik, is one of a series of Ninth Circuit cases dealing with the “factual nexus” concept and its application in cases with complicated factual circumstances in which the connection between the. wrongful conduct of the police and the evidence sought to be suppressed was not readily apparent. In Nava-Ramirez, to the contrary, there was a direct and obvious link between the illegal detention of the car and the discovery of contraband in the trunk. For example, Kandik, 633 F.2d 1334, involved a complex conspiracy between three men to print counterfeit money. One of the men was arrested by federal investigators and cooperated with them in exchange for leniency. He implicated Kandik as one of the counterfeiters and told the investigators that Kandik had said he took the counterfeiting equipment to Mount Lemon and burned it. Kandik and his attorney subsequently met with a prosecutor to discuss a plea agreement. While maintaining his innocence, Kandik told prosecutors that he might be able to procure the counterfeiting plates. Plea negotiations broke down and the prosecutor then used the information gained from Kandik and the other conspirator to obtain a warrant to search" }, { "docid": "1059296", "title": "", "text": "the government’s informants. Ill A. Alexander asserts that the warrantless overflights of the Nipomo ranch were unlawful because they violated his reasonable expectation of privacy. He argues that because the information gleaned from the overflights formed a substantial part of the allegations in Bitterolf’s affidavit, search warrant # 1325 was tainted with illegality and all evidence seized pursuant to it must be suppressed. The legality of overflights poses difficult questions of fourth amendment law. We upheld warrantless overflights under somewhat different circumstances in United States v. Allen, 675 F.2d 1373, 1380-81 (9th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 133, 70 L.Ed.2d 112 (1981) (Allen); cf. Dow Chemical Co. v. United States, 749 F.2d 307 (6th Cir.1984) (upholding warrantless aerial surveillance for EPA violations). Unfortunately, the sparse factual record in this case, resulting largely from the conditional plea procedure, does not define clearly under what circumstances these overflights took place. Although in another case the lack of an adequate record in a conditional plea procedure case may result in a trap for the unwary party that has the burden of proof, that result need not obtain in this case. Even if we assume that the overflights violated the defendants’ privacy interests, the fruits of the search undertaken pursuant to the warrant need not be suppressed. We have developed a two-pronged test for the analysis of search warrants obtained by affidavits allegedly tainted with information illegally obtained by law enforcement officers. “While the ultimate burden of proof is on the government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free of taint.” United States v. Spetz, 721 F.2d 1457, 1468 (9th Cir.1983), quoting United States v. Allard, 600 F.2d 1301, 1305 (9th Cir.1979), quoting in turn United States v. Choate, 576 F.2d 165, 186 (9th Cir.) (Hufstedler J., concurring in part and dissenting in part), cert. denied, 439 U.S. 953, 99" }, { "docid": "5357773", "title": "", "text": "illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Tane is consistent with that test, as noted in decisions of this Court in United States v. Cole, 463 F.2d 163, 171-172 (2 Cir. 1972), and United States v. Friedland, 441 F.2d 855, 860 (2 Cir.) cert. denied 404 U.S. 867, 92 S.Ct. 143, 30 L.Ed.2d 111 (1971). While these cases quite correctly assert that disclosure of an individual’s identity in connection with one criminal act does not, by itself, preclude the government from ever using evidence of an unrelated crime in which he is involved, the rule survives that the government must show that evidence to which objection is made derives from an independent, untainted source and investigation. We can see no escape from the principle that a party raising objections to questions based on illegal electronic surveillance must be given a meaningful opportunity to argue that the evidence has been obtained by exploitation of the primary illegality. This, of course, is nothing more than a restatement of principles so clearly enunciated in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Alderman established a procedure for conducting wiretap taint hearings. It asserted that: When an illegal search has come to light, [the government] has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time petitioners must go forward with specific evidence demonstrating taint. “[T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of a poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof has an independent origin. Nardone v. United States, 308 U.S. 338, 341, [60 S.Ct. 266, 84 L.Ed. 307] (1939).” Alderman v. United States, supra, at 183, 89 S.Ct. at 972. In the case before us, the government turned over summary logs" }, { "docid": "11880326", "title": "", "text": "motion to suppress able to undermine the assertions of Lucksted and other FBI agents that their informants were independently developed. Appellant next argues that if the burden was on him to show a causal relationship between the wiretap and the informants’ reports, the district judge erred in refusing to order the FBI to produce the transcripts of the over one hundred telephone calls involving appellant Serino which had been illegally intercepted. Appellant sought the transcripts as a possible source of evidence that the informants’ reports were the fruit of the illegal wiretap. In Alderman v. United States, supra, the Supreme Court was faced with the issue of whether the government should be compelled to disclose wiretap transcripts to a defendant who sought to meet his Nardone burden of showing that the evidence upon which the United States relied had been tainted by the illegal interceptions. The Court ruled: “With this task ahead of them, and if the hearings [on suppression of evidence] are to be more than a formality and petitioners not left entirely to reliance on government testimony, there should be turned over to them the records of those overheard conversations which the Government was not entitled to use in building its case against them.” 394 U.S. at 183, 89 S.Ct. at 972. Alderman controls this case, we think, and we conclude that the district judge therefore erred in denying Serino’s request for production of the wiretap transcripts of his conversations. The case must therefore be remanded to the district court for a fresh determination of whether the illegal wiretaps so infected the other evidence set forth in the Lucksted affidavit that no independent basis for finding probable cause existed. See Alderman, supra, at 184-87, 89 S.Ct. 961. The judgments in Nos. 76-1012, 76-1014 and 76-1015 are affirmed. The judgment in No. 76-1013 is vacated and remanded for proceedings consistent with this opinion. . Appellants also assert that if appellant Serino is successful in his challenge to the sufficiency of the affidavit supporting the wiretap order in this case, the affidavit will name only four instead of five participants" }, { "docid": "20843480", "title": "", "text": "371 U.S. 471, 487, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1962) in explaining the doctrine reads: “We need not hold that all evidence be ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Alderman v. United States, supra, came to the Supreme Court in 1968. In discussing the question of standing to attack an illegal wiretap, the Court made the following comment by way of illustration : “If the police make an unwarranted search of a house and seize tangible property belonging to third parties— even a transcript of a third party conversation — the homeowner may object to its use against him, not because he had any interest in the seized items as ‘effects’ protected by the Fourth Amendment, but because they were the fruits of an unauthorized search of his house, which is itself expressly protected by the Fourth Amendment. Nothing seen or found on the premises may legally form the basis for an arrest or search warrant or for testimony at the homeowner’s trial, since the prosecution would be using the fruits of a Fourth Amendment violation.” (394 U.S. page 176, 89 S.Ct. page 968) This language is quite broad and might seem to require suppression in the case at bar. However, we think it must be read in the light of the preceding cases, that is, Silverthorne, Nardone, and Wong Sun, because Alderman does not purport to expand the “exclusionary-tainted evidence” rule. Then Judge Burger in Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281, 286 (1967) said: “From its inception, the ‘fruit of the poisonous tree’ doctrine has not applied where the information was also obtained from an ‘independent’ source.” In this Circuit we have the case of United States v." } ]

[ { "docid": "22669539", "title": "", "text": "1982); Weiss v. Lehman, 676 F. 2d 1320 (CA9 1982); Madyun v. Thompson, 657 F. 2d 868 (CA7 1981). Nebraska had provided respondent with a tort remedy for his alleged property deprivation. Neb. Rev. Stat. § 81-8,209 et seq. (1976). We held that this remedy was entirely adequate to satisfy due process, even though we recognized that it might not provide respondent all the relief to which he might have been entitled under § 1983. 451 U. S., at 543-544. In reaching our conclusion in Parratt, we expressly relied on then-judge Stevens’ opinion for the Seventh Circuit in Bonner v. Coughlin, 517 F. 2d 1311 (1975), modified en banc, 545 F. 2d 565 (1976), cert. denied, 435 U. S. 932 (1978), holding that, where an individual has been negligently deprived of property by a state employee, the state’s action is not complete unless or until the state fails to provide an adequate postdeprivation remedy for the property loss. 451 U. S., at 541-542. In Logan, we examined a claim that the terms of an Illinois statute deprived the petitioner of an opportunity to pursue his employment discrimination claim. We specifically distinguished the case from Parratt by noting that “Parratt. . . was dealing with a. . . ‘random and unauthorized act by a state employee... [and was] not a result of some established state procedure.’” 455 U. S., at 435-436 (quoting Parratt, 451 U. S., at 541). Parratt, we said, “was not designed to reach ... a situation” where the deprivation is the result of an established state procedure. 455 U. S., at 436. Our holding that an intentional deprivation of property does not give rise to a violation of the Due Process Clause if the state provides an adequate postdeprivation remedy was foreshadowed by our discussion of Ingraham v. Wright, 430 U. S. 651 (1977), in Parratt. We noted that our analysis was “quite consistent” with that in Ingraham, a case that, we observed, involved intentional conduct on behalf of state officials. 451 U. S., at 542. It is noteworthy that the Commonwealth has enacted the State Tort Claims" } ]

[ { "docid": "10612288", "title": "", "text": "of the established procedures for recovering seized property,” and court would not dismiss § 1983 claim at summary judgment stage based on potential constructive notice provided by published regulations because, even if such notice was constitutionally adequate, defendants had not presented that argument to the court). . In Parratt v. Taylor, the Supreme Court held that where a deprivation is the result of \"random and unauthorized” negligent conduct by a state actor such that it would be impossible for the state to provide a predeprivation hearing, due process requires only post-deprivation process. 451 U.S. at 541, 543-44, 101 S.Ct. 1908, overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In Hudson v. Palmer, the Supreme Court held that a post-deprivation hearing also satisfies due process where the deprivation is the result of an intentional, \"random and unauthorized” deprivation by a state actor. 468 U.S. at 534-35, 536-37, 104 S.Ct. 3194. . Although the Amended Complaint does not contain facts relating to Nulty’s authority or duties with respect to procedural safeguards, the Court assumes for purposes of this motion that as the highest ranking official in the police department, Nulty was the individual responsible for initiating and/or supervising the requisite post-deprivation procedures that applied to the seizure of Plaintiffs property. . For this reason, Plaintiff’s argument that Defendants failed to comply with their obligations under CPLR § 1311 does not place his due process claim within the Parratt/Hudson category. See, e.g., DiBlasio, 344 F.3d at 303 (explaining that allegation that certain actions taken by high ranking official were in excess of authority, or in violation of state law, does not render such actions \"unauthorized” as that term is used in Parratt and Hudson). . Plaintiff's allegations regarding Nulty's authority for the purpose of stating a Monell claim are also relevant to Plaintiff's procedural due process claim; the Second Circuit has held that allegations sufficient to demonstrate an established state procedure for purposes of a procedural due process claim are likewise adequate to state a Monell claim. Alexandre v. Cortes," }, { "docid": "12575347", "title": "", "text": "the only allegation of racial discrimination is conclusory. I. Due Process Claim The Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, “only against deprivations without due process of law.” Parrott v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (internal quotation marks omitted), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). As we explained in Hellenic American Neighborhood Action Committee v. City of New York (“HANAC’), in evaluating what process satisfies the Due Process Clause, “the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.” 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Parratt, 451 U.S. at 541, 101 S.Ct. 1908). When the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides meaningful post-deprivation remedy. Id.; see Hudson, 468 U.S. at 533, 104 S.Ct. 3194 (explaining that when deprivations are “random and unauthorized ... predeprivation procedures are simply impracticable since the state cannot know when such deprivations will occur” (internal quotation marks omitted)). In contrast, when the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing. HANAC, 101 F.3d at 880; Parratt, 451 U.S. at 541, 101 S.Ct. 1908. Under those circumstances, “the availability of post-deprivation procedures will not, ipso facto, satisfy due process.” HANAC, 101 F.3d at 880. The distinction between random and unauthorized conduct and established state procedures, however,- is not clear-cut. In Zinermon v. Burch, the Court held that government actors’ conduct cannot be considered random" }, { "docid": "22151776", "title": "", "text": "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). In some instances, it also has been held that the availability under state law of a post-deprivation hearing or tort remedies completely will satisfy due process and bar a section 1983 claim. See, e.g., Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984) (state tort remedy adequate protection for alleged intentional destruction of prisoner’s property); Parratt v. Taylor, 451 U.S. 527, 541-44, 101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420 (1981) (state tort action sufficient protection for alleged negligent destruction of prisoner’s property), overruled in part, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986) (mere negligence on part of state official cannot work a constitutional deprivation of property); see also Ramsey v. Board of Educ. of Whitley County, Kentucky, 844 F.2d 1268, 1273 (6th Cir.1988) (state contract action adequate remedy for denial of accumulated sick days); Costello, 811 F.2d at 784 (grievance procedure was sufficient remedy for retired police officers’ claims of denial of increase in pension benefits). Recently, in Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), the Supreme Court, seeking to clarify its earlier decisions, identified the circumstances under which the availability of post-deprivation state remedies will bar a section 1983 claim. The Zinermon Court concluded that its earlier decisions in Par-ratt and Hudson stand for the principle that in some instances a deprivation of property may be so random and unpredictable that the provision of pre-deprivation proceedings is impossible. Both Hudson and Parratt involved claims by prisoners who alleged that prison guards had destroyed their property. In those cases, the Court held that the state could not forsee when the deprivation would occur and its ability to provide pre-deprivation process was non-existent. The Zinermon Court contrasted these prior cases with a situation in which the alleged deprivation was predictable, pre-deprivation procedures" }, { "docid": "10095374", "title": "", "text": "holding that Wilson failed to state an equal protection claim was also correct. II After dismissing Wilson’s substantive claims, the district court construed his complaint to allege violation of his right to procedural due process under the Fourteenth Amendment. The court then stated that complaints of procedural due process are governed by the rule of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and proceeded to dismiss the complaint against all defendants on this basis. The district court failed to recognize that Parratt applies only to random and unauthorized deprivations. In Parratt, the plaintiff ordered a hobby kit to be delivered to him at the state prison where he was an inmate. The plaintiff never received the kit. He alleged that it was lost through the negligence of prison officials and filed suit in federal court under 42 U.S.C. § 1983 to recover damages. A state remedy was also available to the plaintiff, for Nebraska had a tort claims procedure which provided a remedy to persons, such as the plaintiff, who suffered tortious losses at the hands of the State. Id. at 530, 101 S.Ct. at 1910. Considering whether the plaintiff could make a federal case from the negligent loss of a hobby kit valued at $23.50, the Supreme Court held that (1) a deprivation of property can violate the due process clause of the Fourteenth Amendment even if caused by mere negligence, id. at 536-537, 101 S.Ct. at 1913-14, but (2) the requirements of due process can be satisfied, at least where the deprivation is the result of a random and unauthorized act by a state employee, by post-deprivation remedies such as the right to bring a damage suit in state court, id. at 541, 543-544, 101 S.Ct. at 1916-17. The second holding was reaffirmed in another case involving a prisoner’s personal property, Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), but the first holding was overruled in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (“[T]he Due Process Clause is simply not" }, { "docid": "18990981", "title": "", "text": "347, 356-57 (Tex.App.2000). However, we need not address the issue of whether a defendant’s entitlement to immunity renders a post-deprivation remedy unavailable because Dr. Stotter is not required to establish the unavailability of post-deprivation remedies in this case. Under the Parratt/Hudson doctrine “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The key word is “unauthorized.” The Supreme Court later clarified that if the deprivation was authorized by the state and the state had an opportunity to provide some type of pre-deprivation remedy, failure to do so implicates the due process clause. Zinermon v. Burch, 494 U.S. 113, 127-30, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). In applying Zinermon, this circuit has held that a § 1983 action for deprivation of procedural due process is barred if a state has adequate post-deprivation remedies and the following conditions exist: (1) the deprivation must truly have been unpredictable or unforeseeable; (2) pre-deprivation process would have been impossible or impotent to counter the state actors’ particular conduct; and (3) the conduct must have been unauthorized in the sense that it was not within the officials’ express or implied authority. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en banc). Otherwise, a § 1983 action for deprivation of procedural due process is not barred under the Parratt/Hudson doctrine. Here, the deprivation was both predictable and foreseeable. In fact, not only was it possible for Dr. Bailey to provide a pre-deprivation remedy in this case, he attempted to do so by sending Dr. Stotter a letter giving him an opportunity to remove any personal items from his lab. Moreover, UTSA and Dr. Bailey specifically authorized the" }, { "docid": "18990980", "title": "", "text": "The district court conceded that the February 23, 2001 notice letter was insufficient to give Dr. Stotter sufficient time to remove any personal items from his lab prior to the February 26, 2001 cleanup. We agree. In fact, Dr. Stotter did not even receive the notice letter until after his lab was cleaned and his personal property allegedly discarded. Nonetheless, the district court granted the motion for summary judgment in favor of the defendants on two grounds. First, the district court held that because an adequate post-deprivation remedy was available, i.e., a state conversion claim, Dr. Stotter could not establish a procedural due process violation. Dr. Stotter counters that there is no adequate post-deprivation remedy available in this case because the defendants are immune from suit under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code § 101.021 (2007). Dr. Stotter is correct that under Texas law, conversion is considered an intentional tort for which the Texas Tort Claims Act preserves immunity. See Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 356-57 (Tex.App.2000). However, we need not address the issue of whether a defendant’s entitlement to immunity renders a post-deprivation remedy unavailable because Dr. Stotter is not required to establish the unavailability of post-deprivation remedies in this case. Under the Parratt/Hudson doctrine “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The key word is “unauthorized.” The Supreme Court later clarified that if the deprivation was authorized by the state and the state had an opportunity to provide some type of pre-deprivation remedy, failure to do so implicates the due process clause. Zinermon v. Burch, 494 U.S." }, { "docid": "19718397", "title": "", "text": "so, “an appellate court may affirm on any ground supported by the record.” Warda v. Commissioner, 15 F.3d 533, 539 n. 6 (6th Cir.), cert. denied, — U.S. -, 115 S.Ct. 55, 130 L.Ed.2d 14 (1994). The Supreme Court has long recognized that in some instances it will be “impracticable” to afford a pre-deprivation hearing. Parratt v. Taylor, 451 U.S. 527, 540-41, 101 S.Ct. 1908, 1915-16, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). As a result, “a state actor’s random and unauthorized depriva tion” of procedural due process “cannot be challenged under 42 U.S.C. § 1988 so long as the State provides an adequate postdeprivation remedy.” Albright v. Oliver, 510 U.S. 266, -, 114 S.Ct. 807, 818, 127 L.Ed.2d 114 (1994) (Kennedy, J., concurring). Parratt applies where, as here, plaintiffs allege that defendants have acted not in accordance with state practice, but rather in direct violation of state law. G.M. Eng’rs & Assocs. v. West Bloomfield Township, 922 F.2d 328, 331-32 (6th Cir.1990). Plaintiffs in § 1983 eases falling under the scope of Parratt must plead that the state does not afford adequate post-deprivation remedies. Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Plaintiffs here make no mention in their complaint of the remedies, or lack of remedies, provided by the state. They do not indicate whether there is an administrative scheme within the prison or a judicial remedy in tort, so their due process claim fails as a matter of law. B. Pendent State-Law Claims ■ In addition to the federal claims presented, plaintiffs attempted to plead state-law claims based upon the alleged misappropriation of property and funds required by state law to be used for the benefit of inmates. As with the procedural due process claim, the district court did not mention these pendent claims in its order of dismissal. Plaintiffs now assert that it was an abuse of discretion for the district court to have dismissed these claims without stating its reasons. We disagree. “Where a district court exercises jurisdiction over" }, { "docid": "22983165", "title": "", "text": "468 U.S. 517, 529-37, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 535-45, 101 S.Ct. 1908, 1913-17, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The doctrine rests on the premise that because the state is unable to predict random and unauthorized conduct, pre-deprivation remedies are infeasible. See Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 985-86, 108 L.Ed.2d 100 (1990). In such a case, the provision of adequate state law post-deprivation remedies provides all the due process that is required. Id. Conduct is not random and unauthorized when the state has expressly delegated the power and authority to effect the very deprivation complained about. See Zinermon, 494 U.S. at 136, 110 S.Ct. at 989. Thus, at least as to the search of the storage facility and the order authorizing search of safe deposit boxes, it cannot be said that the defendants’ conduct was random or unauthorized and pre-deprivation provision of notice and hearing to the parties specifically named in the state court’s orders was feasible. As to the search of the storage room, Parratt-Hudson does not bar the Davises’ claims. Further, the Parratt-Hudson doctrine can only be applied to negate an alleged violation of procedural due process. Augustine v. Doe, 740 F.2d 322, 326-27 (5th Cir.1984). The Davises allege that the defendants effected a warrantless entry into the Davis home and seized personal property in ostensible satisfaction of Johnson’s debt. We are persuaded that those allegations are sufficient to state a substantive due process claim under the Fourth Amendment. See Augustine, 740 F.2d at 325 (warrantless entry for purpose of arrest and seizure of plaintiffs dog amounted to substantive due process claim such that Parratt-Hudson was inapplicable). The Parratt-Hudson doctrine does not negate the Davises’ claims for violation of due process in violation of the Fourth and Fourteenth Amendments. ROOKER-FELDMAN DOCTRINE The defendants’ argument that dismissal must be affirmed on the basis of Rooker-Feldman is also erroneous. When issues raised in a federal court are “inextricably intertwined” with" }, { "docid": "23104732", "title": "", "text": "that the United States Supreme Court has held that neither negligent nor intentional deprivations of property under color of state law that are random and unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state remedy, see Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393, 407 (1984) (intentional deprivation); Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420, 432 (1981) (negligent deprivation), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), those cases do not apply here. Both Parratt and Hudson deal with random and unauthorized deprivations of property rather than deprivations according to some established state policy, procedure, or custom. As the Court explained in Parratt: The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner’s property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not the result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under “color of law,” is in almost all cases beyond the control of the State. Indeed, in most cases, it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation. 451 U.S. at 541, 101 S.Ct. at 1916. On the other hand, when the deprivation is not random and unauthorized, but is pursuant to an affirmatively established or de facto policy, procedure, or custom, the state has the power to control the deprivation and, therefore, generally must, in the absence of compelling reasons to the contrary, give the plaintiff a predeprivation hearing. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265, 278" }, { "docid": "9182027", "title": "", "text": "of Post-Deprivation Relief in State Court Before reaching Tucker's main contentions, we reject her argument that the district court erred in considering her appeal rights under Illinois law. Relying on Zinermon v. Burch , 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), and Parratt v. Taylor , 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Tucker contends post-deprivation remedies may be considered only where the deprivation is the result of \"random and unauthorized\" acts by individual government agents. Tucker's argument mischaracterizes the rule laid down in Parratt and distinguished in Zinermon . In Parratt , the Supreme Court held the government did not offend due process by failing to provide an inmate with a hearing before prison officials inadvertently lost his property in the mail. Such a hearing would have been impossible to schedule given it was the result of a \"random and unauthorized act.\" 451 U.S. at 541-44, 101 S.Ct. 1908. Parratt explained that the general preference for a pre-deprivation hearing does not control where the government is unable to foresee the deprivation and provides adequate post-deprivation remedies. Id. at 544, 101 S.Ct. 1908. By contrast, the Court in Zinermon ruled state tort remedies insufficient because the government could have foreseen that holding a hearing before committing a person to a mental health facility would avoid erroneous commitments. 494 U.S. at 136-37, 110 S.Ct. 975. These cases address whether post-deprivation remedies standing alone satisfy due process, in the absence of any pre-deprivation hearing. Here, Tucker received both a pre-deprivation hearing and an avenue to seek post-deprivation relief through judicial review. While Parratt holds that post-deprivation remedies may be sufficient if the deprivation is \"random and unauthorized,\" neither Parratt nor Zinermon stands for the proposition that post-deprivation remedies are otherwise irrelevant to a procedural due process claim. Rather, the adequacy of pre-deprivation proceedings may turn on the availability and nature of post-deprivation remedies. See Parratt , 451 U.S. at 541, 101 S.Ct. 1908 (noting precedents excusing pre-deprivation hearings \"have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a" }, { "docid": "9675739", "title": "", "text": "Palmer, 468 U.S. 517, 531-33, 104 S.Ct. 3194, 3202-04, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420 (1981), overruled on other grounds in Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (“over-rul[ing] Parratt to the extent that it states that mere lack of due care by a state official may ‘deprive’ an individual of life, liberty, or property under the Fourteenth Amendment”). As Chief Justice Rehnquist observed in Parratt, when a loss of property is the result of a random, unauthorized act of a state employee, rather than an established state procedure, [i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under “color of law,” is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation. 451 U.S. at 541, 101 S.Ct. at 1916. Marino’s claim thus lacks the essential elements of a deprivation of procedural due process. He makes no claim that the Department of Transportation authorizes its AUs to deprive respondents of any federal procedural right or otherwise to make unlawful evidentiary rulings. Nor does Marino contend that it was practical for the Department of Transportation to provide a predeprivation hearing to head off random procedural errors by the AU, or that the state’s procedures, for correcting any such error after the fact were inadequate. Indeed, Section 7803(3) of New York’s Civil Practice Law and Rules provides for judicial review of administrative agency error, including whether a determination was affected by an error of law. N.Y.Civ.Prac.L. & R. 7803(3) (McKinney 1981 & Supp.1988). Absent a showing of inadequate state procedures his claim must fail. Marino argues in response that he is not required to exhaust state remedies before bringing a Section 1983 action. See Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). That is" }, { "docid": "17558263", "title": "", "text": "prior to summary repossession gave rise to a “possessory interest in the goods, dearly bought and protected by contract, [that] was sufficient to invoke the protection of the Due Process Clause.” Id. at 86-87, 92 S.Ct. at 1997 (footnote omitted). Under Fuentes, it is clear that the substantial sums that Alexandre paid for the Porsche gave him a protected possessory interest in the car. Hence, dismissal of Alexandre’s claim on the ground that the vehicle was not his “property” is precluded by Fuentes. B. Adequacy of post-deprivation remedy The district court held, and the defendants argue on appeal, that post-deprivation remedies available under state tort law (including actions for replevin and trespass to chattels) are adequate to redress any injury that Alexandre may have suffered because of the defendants’ release of the Porsche to I & B. In so arguing, defendants rely on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Hudson, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393. In Parratt, the Supreme Court held that, when a meaningful post-deprivation remedy was available at state law, a state employee’s negligent deprivation of a prisoner’s property was not actionable under § 1983. See Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17. In Hudson, the High Court broadened this holding to encompass even intentional deprivations. See Hudson, 468 U.S. at 533, 104 S.Ct. at 3203-04. The Court reasoned that state law post-deprivation remedies satisfy due process in such cases because, “when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations will occur.” Id. But “an adequate post-deprivation remedy is a defense to a Section 1983 due process claim only where the deprivation is random and unauthorized.” Butler, 896 F.2d at 700. By contrast, “the existence of independent state relief does not defeat a Section 1983 claim where the deprivation complained of results from the operation of" }, { "docid": "22846058", "title": "", "text": "adjudication assured, had defendants adopted appropriate recusal procedures. As noted, the district court rejected defendants’ qualified immunity defense to plaintiffs’ claims, relying on what it perceived as irregularities surrounding the hearings, and further reasoning that it was clearly established that the government must provide an employee with a pre-termination hearing comporting with notions of due process. Locurto, 95 F.Supp.2d at 168 n. 4. Defendants challenge this ruling pointing out that New York law afforded plaintiffs the vehicle of an Article 78 proceeding, an adequate post-deprivation remedy. Ordinarily, the due process clause of the Fourteenth Amendment requires that a state or local government afford persons “some kind of a hearing” prior to depriving them of a significant liberty or property interest. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 299, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Defendants concede that Locurto, Steiner, and Walters possessed a constitutionally protected property interest in their tenure as public employees, terminable only for cause. See Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). When such a public employee is terminated, procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); see also Gilbert, 520 U.S. at 929, 117 S.Ct. 1807. 1. Random and Unauthorized Conduct The Supreme Court distinguishes between deprivations of liberty or property occurring as a result of established governmental procedures, and those based on random, unauthorized acts by government officers. See Parrott, 451 U.S. at 541, 101 S.Ct. 1908. Under the latter scenario, a deprivation effectuated through the random and unauthorized acts of government officials does not violate procedural due process so long as the government provides a meaningful remedy subsequent to the deprivation." }, { "docid": "15079915", "title": "", "text": "integrity ...” Albright, — U.S. at -' 114 S.Ct. at 812. Soldal v. Cook County makes clear that the Fourth Amendment is the textual source of the Tinneys’ constitutional protection. In Soldal, the Supreme Court held that police officers’ participation in the seizing and carrying away of a family’s mobile home was a seizure under the Fourth Amendment. 506 U.S. 56, 71-72, 113 S.Ct. 538, 549, 121 L.Ed.2d 450 (1992). Thus, the Tinneys’ substantive due process claim is foreclosed by Alb'right and Soldal. Because the Tinneys have failed to assert a cognizable constitutional claim, the district court erred by denying Appellants summary judgment. 2. The Procedural Due Process Claim The Tinneys assert, and the district court held, that Appellants’ failure to adhere to Alabama’s pre-deprivation takings procedure constituted a procedural due process violation. Conversely, Appellants contend that the district court erred in denying them summary judgment on the procedural due process claim because adequate post-deprivation remedies were available under state law. In other words, Appellants maintain that the deprivation in this case was not complete because a property deprivation does not occur until the state has been given the opportunity to remedy the state employees’ error and has failed to do so. Appellants’ contention rests on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not relevant by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986). Parrott involved a prisoner’s loss of property due to the random, negligent act of a state employee. The Supreme Court held that the state tort remedies available to the prisoner satisfied the prisoner’s due process rights because due process does not require a pre-deprivation hearing where such a hearing would be impracticable — i.e., where the deprivation re- suits from an employee’s negligent act. In Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984), the Court extended Parratt’s reasoning and held that “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due" }, { "docid": "23563721", "title": "", "text": "that a statutory provision for a post-deprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process.” Id. at 128, 110 S.Ct. 975. For example, in Parratt v. Taylor, and thereafter in Hudson v. Palmer, the Supreme Court held that, when a state officer randomly and without authorization departs from established state procedures, the state need only provide post-deprivation procedures. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt, 451 U.S. 527, 543, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (overruling Parratt to the extent it suggested that a constitutional injury could be established based on negligence). The Supreme Court held in Parratt that a state tort claim was an adequate remedy for a prisoner aggrieved by prison officials’ negligent loss of his property, and in Hudson the Court held the same with respect to a prisoner whose property was intentionally destroyed by a prison guard. The District Court relied on Parratt in deciding that Revell’s failure to take advantage of available remedies, namely a state court lawsuit, warranted summary judgment on his due process claim. Revell argues that, because his deprivation was made pursuant to Port Authority policy as opposed to an unauthorized act, a state tort remedy is insufficient and that, instead, “there must be a statutory provision for a post-deprivation hearing to satisfy due process.” (Appellant’s Op. Br. at 25.) But, Revell’s due process claim is not based on defendants’ initial seizure of the property. Instead, in his opening brief, Revell clarified that his claim rests on the defendants’ retention of his property after the charges against him had been dismissed and on their failure to provide him notice and an opportunity for a post-deprivation hearing. (Appellant’s Op. Br. at 26 (“Revell should not have been deprived of the property after August 2, 2005 without being provided constitutionally adequate notice and an opportunity for a post-deprivation hearing.”).) Revell has identified no policy requiring officers of the Port Authority to retain" }, { "docid": "23104731", "title": "", "text": "Other courts have held that prisoners have a protected property interest in their prison trust accounts. See Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.1985); Artway v. Scheidemantel, 671 F.Supp. 330, 337 (D.N.J.1987); Ruley v. Nevada Bd. of Prison Commr’s, 628 F.Supp. 108, 112 (D.Nev.1986); Jones v. Clark, 607 F.Supp. 251, 254 (E.D.Pa.1984). Given a valid property interest in the funds in the account, plaintiff cannot be deprived of the same without due process. Contrary to the argument of defendants, it has long been recognized that rights in property are basic civil rights. Lynch v. Household Fin. Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 1122, 31 L.Ed.2d 424, 435 (1972). Section 1983 does not distinguish between personal liberties and property rights, and a deprivation of the latter without due process gives rise to a claim under § 1983. 405 U.S. at 549, 92 S.Ct. at 1120. Defendants contend that plaintiff has not been deprived of his property without due process because he has adequate administrative and state post-deprivation remedies. While defendants are correct that the United States Supreme Court has held that neither negligent nor intentional deprivations of property under color of state law that are random and unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state remedy, see Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393, 407 (1984) (intentional deprivation); Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420, 432 (1981) (negligent deprivation), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), those cases do not apply here. Both Parratt and Hudson deal with random and unauthorized deprivations of property rather than deprivations according to some established state policy, procedure, or custom. As the Court explained in Parratt: The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner’s property as a result of a random and unauthorized" }, { "docid": "22983164", "title": "", "text": "— Dallas 1994, no writ). Bayless offers no factual support for her conclusory allegation that she was acting as Raborn’s agent, rather than in her capacity as the judgment-creditors’ attorney. Even assuming that Bayless was Raborn’s agent, the Davises allege that Bayless seized wom-ens underwear, which would clearly have exceeded the scope of the receiver’s authority to take possession of Dr. Johnson’s property. Because the pleadings indicate that Bayless may have exceeded the authority afforded to the receiver, the district court’s dismissal of the Davises’ damage claims against Bayless and Bayless & Stokes, if not supported by any other ground, must be reversed. PARRATT-HUDSON DOCTRINE: ADEQUATE STATE LAW REMEDIES The district court also relied upon the availability of state law remedies in its decision to dismiss the complaint. “Under the Parratt/Hudson doctrine, a state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy.” Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir.1995); see Hudson v. Palmer, 468 U.S. 517, 529-37, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 535-45, 101 S.Ct. 1908, 1913-17, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The doctrine rests on the premise that because the state is unable to predict random and unauthorized conduct, pre-deprivation remedies are infeasible. See Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 985-86, 108 L.Ed.2d 100 (1990). In such a case, the provision of adequate state law post-deprivation remedies provides all the due process that is required. Id. Conduct is not random and unauthorized when the state has expressly delegated the power and authority to effect the very deprivation complained about. See Zinermon, 494 U.S. at 136, 110 S.Ct. at 989. Thus, at least as to the search of the storage facility and the order authorizing search of safe deposit boxes, it cannot be said that the defendants’ conduct was random or unauthorized and pre-deprivation provision of notice and hearing" }, { "docid": "10612287", "title": "", "text": "instant motion. See supra note 19. Additionally, with respect to Defendants’ assertion that Plaintiff waived his right to pursue an adequate state law remedy, assuming that such an argument is relevant to Plaintiff's § 1983 claim (which is not clear from Defendants’ submissions), such an argument would not succeed in connection with the instant motion, because Plaintiff has alleged that he did not receive notice of the relevant state law procedures and Defendants failed to address this allegation in their motion papers. See, e.g., City of W. Covina v. Perkins, 525 U.S. 234, 240, 119 S.Ct. 678, 681, 142 L.Ed.2d 636 (1999) (“It follows [from the requirement that the opportunity for a hearing be meaningful] that when law enforcement agents seize property pursuant to a warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies.”); see also, e.g., Kneitel v. Danchuk, No. 04 Civ. 0971(NGG)(LB), 2007 WL 2020183, at *6 (E.D.N.Y. July 6, 2007) (\"Plaintiff was constitutionally entitled to notice of the established procedures for recovering seized property,” and court would not dismiss § 1983 claim at summary judgment stage based on potential constructive notice provided by published regulations because, even if such notice was constitutionally adequate, defendants had not presented that argument to the court). . In Parratt v. Taylor, the Supreme Court held that where a deprivation is the result of \"random and unauthorized” negligent conduct by a state actor such that it would be impossible for the state to provide a predeprivation hearing, due process requires only post-deprivation process. 451 U.S. at 541, 543-44, 101 S.Ct. 1908, overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In Hudson v. Palmer, the Supreme Court held that a post-deprivation hearing also satisfies due process where the deprivation is the result of an intentional, \"random and unauthorized” deprivation by a state actor. 468 U.S. at 534-35, 536-37, 104 S.Ct. 3194. . Although the Amended Complaint does not contain facts relating to Nulty’s authority" }, { "docid": "15079916", "title": "", "text": "because a property deprivation does not occur until the state has been given the opportunity to remedy the state employees’ error and has failed to do so. Appellants’ contention rests on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not relevant by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986). Parrott involved a prisoner’s loss of property due to the random, negligent act of a state employee. The Supreme Court held that the state tort remedies available to the prisoner satisfied the prisoner’s due process rights because due process does not require a pre-deprivation hearing where such a hearing would be impracticable — i.e., where the deprivation re- suits from an employee’s negligent act. In Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984), the Court extended Parratt’s reasoning and held that “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the 14th Amendment if a meaningful post-deprivation remedy for the loss is available.” The state’s action is not complete unless and until it refuses to provide a post-deprivation remedy. Id. The Tinneys contend that application of the Parratt rule in cases like this one amounts to a requirement that a Section 1983 plaintiff seeking to redress a violation of procedural due process must exhaust his or her state remedies before suing in federal court. The Supreme Court rejected such a requirement in Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). However, the Tinneys’ contention lacks merit. In a recent public employment case brought under Section 1983, this Court, sitting en banc, explained the difference between Patsy’s import and Parratt's: In Patsy the Supreme Court held that section 1983 plaintiffs were not required to avail themselves of available state remedies before suing in federal court; the Court’s holding presumed the presence of a valid constitutional claim. In this case, McKinney cannot state a valid constitutional claim" }, { "docid": "10447648", "title": "", "text": "United States Constitution, what process is due plaintiff to protect that interest. The Court must look to federal and not state law for the procedures required to protect plaintiff’s property interest in future employment. See Loudermill, 470 U.S. at 541, 105 S.Ct. at 1492-93. The Court in Loudermill held that a civil service employee subject to dismissal only for just cause must be afforded a pretermination hearing, with the opportunity to respond to charges. Id. at 542-45, 105 S.Ct. at 1493-95. Implementing the decision in Loudermill, the Third Circuit appellate court in Stana found that officials must hold a hearing to allow the plaintiff to respond to charges made against her prior to removing her from the employment eligibility list. 775 F.2d at 127-28. Pretermination hearings protect the individual's employment interest and facilitate accurate decision-making by allowing for presentation of the employee’s side of the case. Loudermill, 470 U.S. at 543, 105 S.Ct. at 1493-94. Both interests would be served here. Mr. Kirschling withdrew other job applications in reliance upon the Board’s commitment to employ him as principal. The Board attempted to rescind their offer based upon allegations of sexual harassment by local education associations without allowing plaintiff to respond to the highly inflammatory charges. The Court finds that Mr. Kirschling should have been afforded notice of the charges and an opportunity to present his side of the case prior to the termination of his employment contract. Defendants, however, assert that the Supreme Court decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), defeats plaintiff’s claim that insufficient due process was provided. The Parratt Court held Due Process guarantees not to be implicated in a negligent deprivation of property if adequate post-deprivation remedies exist. Parratt, 451 U.S. at 541-44, 101 S.Ct. at 1916-17. The Court later clarified that where property interests were lost because of an established government procedure rather than the random and unauthorized acts at issue in Parratt, post-deprivation remedies are insufficient. Logan v. Zimmerman" } ]

[ { "docid": "13536656", "title": "", "text": "J. Goodman & Son v. United Lacquer Mfg. Corp., D.C., 1949, 81 F.Supp. 890, 892, where the court said: “Here there is only one purchaser * * *. It is not enough that a prospective purchaser, the plaintiff, would have had to pay a higher price if it did buy. There must be actual sales at two different prices to two different actual buyers.” . Shaw's, Inc., v. Wilson-Jones Co., 3 Cir., 1939, 105 F.2d 331, 333, where the court said: “The discrimination in price referred to must be practiced ‘between different purchasers’. Therefore at least two purchases must have taken place. The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the marketplace for the purpose of purchasing. In other words, it does not mean a prospective purchaser, or one who wishes to pur- - chase * * *. Past purchases or conversations in respect to possible future purchases ■ are insufficient.” Chicago Seating Co. v. S. Karpen & Bros., 7 Cir., 1949, 177 F.2d 863; and Sorrentino v. Glen-Gery Shale Brick Corp., D.C., 1942, 46 F.Supp. 709, 711, where the court said: “Plaintiff’s arguments that his past purchases from Glen-Gery make him a ‘purchaser’ within the meaning of this section and that defendant manufacturers’ refusal to sell him while selling to Margolis [a competitor] constitutes a ‘discrimination’ between ‘purchasers’ in violation thereof cannot be sustained.” . Title 15 U.S.C.A. § 13(a), provides in part: “That nothing contained in sections 12, 13, 14-21, and 22-27 of this title shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade * * . Johnson v. J. H. Yost Lumber Co., 8 Cir., 1941, 117 F.2d 53, 61, where the court said: “It must be borne in mind that one engaged in private enterprise may select his own customers, and in the absence of an illegal agreement, may sell or refuse to sell to a customer for good cause" } ]

[ { "docid": "11933607", "title": "", "text": "established by American Distilling for the purpose of destroying competition with Florida Beverage and eliminating Hartley & Parker as its sole competitor; that Florida Beverage conspired with American Distilling to that end and knowingly induced and received the price discriminations. Thus, on its face, the complaint charges a violation against Florida Beverage. “(f) It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.” 15 U.S.C.A. § 13(f). The defendants insist, however, that the complaint shows on its face that the alleged violations come within the exceptions or provisos to section 13(a), as follows: “And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.” Since all of Hartley & Parker’s actual purchases were prior to August 1, 1930, and all of the purchases by Florida Beverage were after that date, the defendants insist that the complaint fails to show that there were two purchasers of the goods at or about the same time, and that one purchaser received discriminatory advantages which were denied to the other purchaser. In support of that insistence the defendants rely on Shaw’s, Inc. v. Wilson-Jones Co., 3 Cir., 1939, 105 F.2d 331; Chicago Seating Co. v. S. Karpen & Bros., 7 Cir., 1949, 177 F.2d 863; Klein v. Lionel Corporation, 3 Cir., 1956, 237 F.2d 13; and Naifeh v. Ronson Art Metal Works, 10 Cir., 1954, 218 F.2d 202. In Shaw’s, Inc. v. Wilson-Jones Co., supra, the seller simply refused to quote prices to" }, { "docid": "7539609", "title": "", "text": "Court said: “It is clear that there is an allegation that the prices ashed by the defendant from two different prospective buyers is not the same. But Sec. 13(a) deals only with price discrimination between purchasers. Here there is only one purchaser, the State of New Hampshire. It is not enough that a prospective purchaser, the plaintiff, would have had to pay a higher price if it did buy. There must be actual sales at two different prices to two different actual buyers. (Citing cases.)” Also, see Sorrentino v. Glen-Gery Shale Brick Corporation, D.C.Pa.1942, 46 F.Supp. 709. . Footnote 9, supra, 177 F.2d at page 866. . This principle was enunciated in United States v. Colgate & Co., 1918, 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992, when the Court said: “The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce — in a word to preserve the right of' freedom to trade. 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 Ms own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell, * * * » The Clayton Act as amended by' the Robinson-Patman Act itself approves of this principle where in section 2(a) it states: “Nothing [herein] contained * * * shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers, in bona- fide transactions and not in restraint of trade”. Sec. 13(a), Title 15 U.S.C.A. Cf. Johnson v. J. H. Yost Lumber Co., 8 Cir., 1941, 117 F.2d 53, 61. As observed in Camfield Mfg. Co. v, McGraw Elec. Co., D.C.Del.1947, 70 F.Supp. 477, 481: “* * * The complaint simply is defendant will not do business" }, { "docid": "3302048", "title": "", "text": "for treble damages under Sec. 4 of the Clayton Act, 15 U.S.C.A. § IS. Defendant contends that the complaint sets forth no conduct on its part which violates these acts, and that even if it has so violated, the complaint makes no showing that any injury suffered by plaintiff was due to any such violation. The alleged violation of the law consists in the sale of the lacquer by the defendant to the state at a price of $1.75 per gallon, either because this price, compared with the price of $1.85 per gallon at which it would have been sold to the plaintiff, is an act of discrimination falling within the ban of Sections 13(a) and 13a, supra, or because the price taken in itself is unreasonably low within the meaning of Sec. 13a. It is clear that there is an allegation that the prices asked by the defendant from two different prospective buyers is not the same. But Sec. 13(a) deals only with price discrimination between purchasers. Here there is only one purchaser, the State of New Hampshire. It is not enough that a prospective purchaser, the plaintiff, would have had to pay a higher price if it did buy. There must be actual sales at two different prices to two different actual buyers. Shaw’s, Inc., v. Wilson-Jones Co., 3 Cir., 105 F.2d 331; Sorrentino v. Glen-Gery Shale Brick Corporation, D. C., 46 F.Supp. 709. Sec. 13a, on the other hand, does not require price discrimination in actual sales but also expressly includes discrimination in contracts to sell. But this section is limited to cases where a price in one part of the United States is lower than the price exacted by the seller in other parts of the United States. That does not apply to the situation here set forth, for there is here only one lot of lacquer which was to be delivered to the same warehouse whether sold directly to the state or sold to plaintiff for r.esale to the state. However, Sec. 13a also makes it unlawful “to sell, or contract to sell, goods at" }, { "docid": "14803554", "title": "", "text": "destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided * * * That nothing contained in sections 12, 13, 14-21, and 22-27 of this title shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade * Section 3 of the Robinson-Patman Act provides that, “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to be a party to, or assist in, any transaction of sale, or contract to sell, which discriminates to his knowledge against competitors of the purchaser, in that, any discount, rebate, allowance, or advertising service charge is granted to the purchaser over and above any discount, rebate, allowance, or advertising service charge available at the time of such transaction to said competitors in respect of a sale of goods of like grade, quality and quantity * The decisions of many cases have crystallized the rule that an indi vidual can have no cause of action under Section 2(a) of the Clayton Act unless he is an actual purchaser from the person charged with the discrimination. In Shaw’s, Inc., v. Wilson-Jones Co., 3 Cir., 1939, 105 F.2d 331, 333, we stated: “The discrimination in price referred to must be practiced ‘between different purchasers’. Therefore at least two purchases must have taken place. The term purchasers means simply one who purchases, a buyer, a vendee.” Klein did purchase Lionel products, but not from Lionel. It follows that the necessary requisite of two purchasers from the same vendor is not met and Klein therefore can claim no protection under the Act as a direct purchaser. The construction put on the term “purchaser” in Section 2(a) of the Clayton Act must also be placed on that term in Section 3 of the Robinson-Pat-man Act. These sections are parts of the same law and must be construed harmoniously. The court below properly placed such a construction on Section 3 and construed" }, { "docid": "6755638", "title": "", "text": "is whether and to what extent Clark was a seller to Gleason and Hanson. As the Supreme Court has pointed out in Bruce’s Juices v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1021, 91 L.Ed. 1219 (1947) (dictum): “[N]o single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination.” It is well settled that a manufacturer may refuse to sell to a particular customer; however, if the manufacturer does sell to buyers who are competitors, he must treat them equally. Shaw’s, Inc. v. Wilson-Jones Co., 105 F.2d 331 (3d Cir. 1939); Chicago Seating Co. v. S. Karpen & Bros., 177 F.2d 863 (7th Cir. 1949). Other cases have discussed the meaning of competition as used in the Act. It is most important .to note that the manufacturer is not considered to be a competitor; as the Court wrote in Chicago Sugar Co. v. American Sugar Refining Co., 176 F.2d 1, 10 (7th Cir. 1949): “There is nothing in the Act that prevents a seller of a commodity from eliminating middlemen from its distributive system and selling its commodity directly to consumers if it wishes to do so; and if it chooses it may distribute part of its commodity direct and a part through wholesale distributions.” The problem of whether a given set of transactions involves a sales relationship or an agency relationship has arisen in only a few cases. Those cases do, however, indicate that there is no spe cial definition of sale to be applied under the Act, but that the general laws of sale apply to determine whether the relationship of the parties was that of buyer and seller. In Students Book Co. v. Washington Law Book Co., 98 U.S.App.D.C. 49, 232 F.2d 49 (1955), cert. den. 350 U.S. 988, 76 S.Ct. 474, 100 L.Ed. 854 (1956), the question was whether certain book stores were consignees of the defendant publisher or were buyers from the publisher. The Circuit Court approved a charge that included a definition of “sale” taken from the Uniform Sales Act §" }, { "docid": "18400512", "title": "", "text": "is present in this case. (5) Section 2 of the Clayton Act, which is commonly known as the RobinsonPatman Act, 15 U.S.C. § 13, prohibits price discrimination. To establish a violation of the Robinson-Patman Act, a plaintiff must show that the seller made at least two actual sales to two different purchasers at different prices. Black Gold, Ltd. v. Rockwool Industries, Inc., 729 F.2d 676, 682-83 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 178, 83 L.Ed.2d 113 (1984); L & L Oil Co. v. Murphy Oil Corp., 674 F.2d 1113, 1120 (5th Cir.1982). “When a seller refuses to sell to one buyer, the requisite price discrimination between two buyers is lacking.” Black Gold Ltd., 729 F.2d at 683. Even if the Defendant’s requirement that the Plaintiff pay the delinquency in its parts account were construed as an unfavorable capital condition on the purchase of motorcycles that other delinquent dealers did not have to meet, the record does not support a claim of price discrimination. The Plaintiff’s Complaint is based solely on the Defendant’s refusal to sell to the Plaintiff while continuing to sell to other delinquent dealers and is therefore outside the scope of the Robinson-Patman Act. (6) Sections 3, 7, and 8 of the Clayton Act, 15 U.S.C. §§ 14, 18, and 19, prohibit tying and exclusive dealing contracts, certain mergers and acquisitions, and interlocking directorates, respectively. There is obviously no genuine issue as to any material fact concerning any possible claim under these sections, as none of the enumerated activities are present in this case. Therefore, summary judgment is appropriate as to claims under the Clayton Act. (7) The Plaintiffs final claim is that the Defendant’s refusal to sell motorcycles to the Plaintiff while agreeing to sell to other delinquent dealers was an unfair trade practice in violation of N.C.Gen.Stat. § 75-1.1. That statute provides: (a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful. Id. Under N.C.Gen.Stat. § 75-16, a person injured by a practice declared unfair under § 75-1.1 is entitled" }, { "docid": "6755637", "title": "", "text": "any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and . quality, * * * where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce * * Rowe, in his treatise on the Act entitled, Price Discrimination Under the Robinson-Patman Act (1962), states the essential jurisdictional elements of the Act: “The jurisdictional determination turns on these basic statutory requirements: a discrimination must arise from (A) consummated contemporaneous sales transactions (B) by the same seller to different purchasers, (C) involve ‘commodities’ of (D) ‘like grade and quality,’ and (E) occur ‘in commerce.’ ” (At p. 45) See also, Castlegate, Inc. v. National Tea Co., 34 F.R.D. 221, 229 (D.Colo.1963). Under the Act, discrimination in price means difference in price. F. T. C. v. Anheuser-Busch, Inc., 363 U.S. 536, 549-550, 80 S.Ct. 1267, 4 L.Ed.2d 1385 (1960). The element of the Act which I must consider is whether and to what extent Clark was a seller to Gleason and Hanson. As the Supreme Court has pointed out in Bruce’s Juices v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1021, 91 L.Ed. 1219 (1947) (dictum): “[N]o single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination.” It is well settled that a manufacturer may refuse to sell to a particular customer; however, if the manufacturer does sell to buyers who are competitors, he must treat them equally. Shaw’s, Inc. v. Wilson-Jones Co., 105 F.2d 331 (3d Cir. 1939); Chicago Seating Co. v. S. Karpen & Bros., 177 F.2d 863 (7th Cir. 1949). Other cases have discussed the meaning of competition as used in the Act. It is most important .to note that the manufacturer is not considered to be a competitor; as the Court wrote in Chicago Sugar Co. v. American Sugar Refining Co., 176 F.2d 1, 10 (7th Cir. 1949): “There is nothing in the Act that prevents" }, { "docid": "23065264", "title": "", "text": "1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979). The Robinson-Patman Act provides in relevant part: It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. 15 U.S.C. § 13(a) (emphasis added). There is nothing technical or talismanic about the term “purchaser.” “The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the market-place for the purpose of purchasing.” Shaw’s, Inc. v. Wilson-Jones Co., 105 F.2d 331, 333 (3d Cir. 1939). “Moreover, no single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination.” Bruce’s Juices, Inc. v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1020, 91 L.Ed. 1219 (1947). “ ‘[T]here must be actual sales at two different prices to two different actual buyers.’ ” M. C. Manufacturing Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1065 (5th Cir. 1975), quoting Jones v. Metzger Dairies, Inc., 334 F.2d 919, 924 (5th Cir. 1964), cert. denied, 379 U.S. 965, 85 S.Ct. 659, 13 L.Ed.2d 559 (1965). Thus, a sale at one price plus either an offer to sell at a higher price or a refusal to sell at any price is generally thought not to violate the Act. Id. at 1065" }, { "docid": "3302049", "title": "", "text": "State of New Hampshire. It is not enough that a prospective purchaser, the plaintiff, would have had to pay a higher price if it did buy. There must be actual sales at two different prices to two different actual buyers. Shaw’s, Inc., v. Wilson-Jones Co., 3 Cir., 105 F.2d 331; Sorrentino v. Glen-Gery Shale Brick Corporation, D. C., 46 F.Supp. 709. Sec. 13a, on the other hand, does not require price discrimination in actual sales but also expressly includes discrimination in contracts to sell. But this section is limited to cases where a price in one part of the United States is lower than the price exacted by the seller in other parts of the United States. That does not apply to the situation here set forth, for there is here only one lot of lacquer which was to be delivered to the same warehouse whether sold directly to the state or sold to plaintiff for r.esale to the state. However, Sec. 13a also makes it unlawful “to sell, or contract to sell, goods at unreasonably low prices for the purpose of destroying competition or elim mating a competitor.” Plaintiff claims that the price of $1.75 at which defendant sold to the state was unreasonably low, for the purpose of eliminating plaintiff as a competitor. The complaint sets forth sufficient facts to show that plaintiff and defendant were competitors, since they were rivals for the business of selling lacquer to the State of New Hampshire. It describes the basic facts of an alleged course of conduct by defendant which might on further proof justify a finding that defendant acted for the purpose of eliminating plaintiff as a competitor. Nor can I hold, in the absence of further evidence, that the price of $1.75 was not unreasonably low. Consequently, I hold that on this point, the complaint properly alleges a violation of Sec. 13a. But, in order for the plaintiff to recover in a suit for treble damages under Sec. 15, it is necessary to show not only a violation of the anti-trust laws but also injury to the plaintiff which" }, { "docid": "23065265", "title": "", "text": "purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the market-place for the purpose of purchasing.” Shaw’s, Inc. v. Wilson-Jones Co., 105 F.2d 331, 333 (3d Cir. 1939). “Moreover, no single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination.” Bruce’s Juices, Inc. v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1020, 91 L.Ed. 1219 (1947). “ ‘[T]here must be actual sales at two different prices to two different actual buyers.’ ” M. C. Manufacturing Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1065 (5th Cir. 1975), quoting Jones v. Metzger Dairies, Inc., 334 F.2d 919, 924 (5th Cir. 1964), cert. denied, 379 U.S. 965, 85 S.Ct. 659, 13 L.Ed.2d 559 (1965). Thus, a sale at one price plus either an offer to sell at a higher price or a refusal to sell at any price is generally thought not to violate the Act. Id. at 1065 n.ll; Mullís v. Arco Petroleum Corp., 502 F.2d 290, 294 (7th Cir. 1974). See generally A.B.A. Antitrust Sec., Monograph No. 4, The Robinson-Patman Act: Policy and Law Vol. 1, 50-51 (1980). Nevertheless, it has also been held that an established customer who is currently purchasing one type of goods at a higher price and is denied the right to buy a lower-priced good of “like grade and quality” which is being sold to a competitor can sue under the Act. See American Can Co. v. Bruce’s Juices, 187 F.2d 919, 924 (5th Cir. 1951). The appellants in the present case allege that they are “purchasers” of the 800-type word processing machines because despite the assignment terminology in their agreement, the agreement constitutes a novation, i.e., a recission of the original sales agreement between Melbye and Xerox and the creation of a new sales agreement between appellants and Xerox. In addition, appellants allege that at the time they purchased the 800-type used equipment Xerox was selling the same equipment in new condition for discriminatory prices in" }, { "docid": "8549510", "title": "", "text": "shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade * * * Alcoa contends the Act is violated only when there has been an actual, completed discriminatory sale. It claims here, contrary to statutory requirements, Tandet was an “offeree”, not a “purchaser”; there were “offers to sell” by Alcoa, but not “purchases”; and commodities were “offered for sale” at allegedly discriminatory prices but not “sold”. It relies on a line of cases which embrace the language and ruling in Shaw’s Inc. v. Wilson-Jones Co., 3 Cir., 105 F.2d 331, at 333, wherein is stated: “Therefore at least two purchases must have taken place. The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the market-place for the purpose of purchasing. In other words, it does not mean a prospective purchaser, or one who wishes to purchase * * In Package Closure Corp. v. Sealright Co., 141 F.2d 972, 979-980 (2 Cir. 1944), the Court of Appeals affirmed the district court’s refusal to equate mere offers to discriminate with actual price discrimination. See, also, Klein v. Lionel Corp., 237 F.2d 13, 15 (3 Cir. 1956); Chicago Seating Co. v. S. Karpen & Bros., 177 F.2d 863, 867 (7 Cir. 1949); Sorrentino v. Glen-Gery Shale Brick Corp., 46 F.Supp. 709, 711 (E.D.Pa. 1942), and Hartley & Parker, Inc. v. Florida Beverage Corp., 307 F.2d 916, 921 (5 Cir. 1962). Insisting upon a purchase at a discriminatory price as prerequisite to suit under Section 2(a), argues Tandet, would defeat the efforts of Congress to curb price discrimination. He seeks to distinguish the authorities cited by Alcoa, claiming those cases concerned a seller’s complete refusal to deal with a customer, which is protected by the proviso in Section 2(a), supra, and thus are not relevant to the instant case which involves a seller’s refusal to deal with a customer because the customer is unwilling to pay a discriminatory price. In" }, { "docid": "8549509", "title": "", "text": "required to pay under the said agreement, Exhibit A”. The plaintiff’s motion presents this question: Are Tandet’s Second Affirmative Defense and Counterclaim insufficient as a matter of law because no actual, completed sale at a discriminatory price is alleged or claimed? The portions of Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.A. § 13(a), pertinent to the issue presented, provide it shall be unlawful “to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States * * *, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided * * * That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade * * * Alcoa contends the Act is violated only when there has been an actual, completed discriminatory sale. It claims here, contrary to statutory requirements, Tandet was an “offeree”, not a “purchaser”; there were “offers to sell” by Alcoa, but not “purchases”; and commodities were “offered for sale” at allegedly discriminatory prices but not “sold”. It relies on a line of cases which embrace the language and ruling in Shaw’s Inc. v. Wilson-Jones Co., 3 Cir., 105 F.2d 331, at 333, wherein is stated: “Therefore at least two purchases must have taken place. The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the market-place for the purpose of purchasing. In other words, it does not mean a prospective purchaser, or one who wishes to purchase * * In Package Closure" }, { "docid": "11933611", "title": "", "text": "he cannot discriminate in price or services either to the advantage of one purchaser or to the disadvantage of another.” 218 F.2d at p. 206. The evil at which the RobinsonPatman Act is aimed is discrimination between different competing purchasers, where the effect of such discrimination may be substantially to lessen competition or to tend toward a monopoly in commerce. For that evil to exist there must, of course, be at least two different competing purchasers. The purpose of the Act would be defeated, however, if it were given so strict a construction as to require two actual purchases at precisely the same time. In 1959, Plartley & Parker had made purchases amounting to $698,070.89 from American Distilling. From January to July 1960, it had purchased $443,385.79. Under the complaint it had a right to prove, if it could, that it had a substantial stock on hand on and after August 1, 1960, and that in selling that stock it was in present and active competition with Florida Beverage. The complaint further alleged that: “Plaintiff has lost the business and patronage of retail liquor dealers throughout the southeastern Florida market, who have advised Plaintiff that the price differential between Plaintiff’s prices during the period of its exclusive distributorship and prices established by the Defendant, Florida Beverage Corporation, from and after August 1, 1960, establish that Plaintiff had gouged its customers with inflated prices; so that these customers curtailed (and in some cases ceased) purchases of Plaintiff’s other wholesale merchandise with respect to liquors and beverages other than those involved in this action.” Under the Robinson-Patman Act, American Distilling could not lawfully grant Florida Beverage price discriminations over its competitor, Hartley & Parker, which would injure or destroy Hartley & Parker. Certainly it could not do so for that purpose and with that intent as alleged in the complaint. American Distilling’s right even to select its own customers is qualified to the extent that the transactions must be in good faith and not in restraint of trade. 15 U.S.C.A. § 13(a). Moreover, there was certainly some period after August 1, 1960," }, { "docid": "4070884", "title": "", "text": "to competitors of Foremost purchasing a six-month supply of photographic paper, and (2) permitting competitors of Foremost to defer payment on a six-month bulk purchase of paper but not offering the same terms to Foremost. Kodak argues that these allegations plead only credit discrimination, which, it contends, is not a form of indirect price discrimination cognizable under section 2(a). See Craig v. Sun Oil Co., 515 F.2d 221, 224 (10th Cir.1975), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976). However, Foremost has conceded in its reply brief that it “does not allege that Kodak’s discrimination toward it as to [the deferred payment credit plan] violates Section 2(a).” We need not decide, therefore, whether to adopt Craig. Foremost argues that its first allegation concerning a twelve percent price reduction is sufficient to state a prima facie claim for relief under section 2(a). Kodak, on the other hand, argues that Foremost has failed to allege at least two completed, contemporaneous sales by the same seller. See, e.g., Bruce’s Juices, Inc. v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1020, 91 L.Ed. 1219 (1947); Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 677 (9th Cir.1975). This element of a prima facie section 2(a) violation stems directly from the language of the statute referring to discriminations “in price between different purchasers.” 15 U.S.C. § 13(a) (emphasis added). Clearly, a mere “offer” to sell to competing customers at different prices does not satisfy this requirement of two actual, contemporaneous sales. See Shaw’s Inc. v. Wilson-Jones Co., 105 F.2d 331, 333 (3d Cir.1939). We need not decide whether Foremost’s complaint alleges the requisite two contemporaneous sales to competing purchasers at different prices because it suffers from another flaw fatal to its section 2(a) claim. Section 2(a) expressly provides that such price discriminations are unlawful only “where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of" }, { "docid": "5925984", "title": "", "text": "and not in restraint of trade.” 15 U.S.C. § 13(a). It is well established that “a refusal to deal” simply “does not fall within the proscription of section 2(a)” of the Robinson-Patman Act. Black Gold, Ltd. v. Rockwool Indus., Inc., 729 F.2d 676, 682 (10th Cir.1984). B-S Steel has not alleged a violation of any other antitrust provision that might provide relief for a refusal to deal in certain circumstances. See id. (indicating that a refusal to deal “may be actionable under other antitrust provisions”). We therefore conclude that B-S Steel lacks antitrust standing to pursue injunc-tive relief in this case and affirm the district court’s grant of summary judgment on this issue. CONCLUSION For the foregoing reasons, the district court’s summary judgment order is AFFIRMED. .The Robinson-Patman Act provides: It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, ... where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them[.] 15 U.S.C. § 13(a). The provision contains a number of caveats, including \"[t]hat nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.” Id. Subsection (b) also allows a defendant in a subsection (a) action to rebut the plaintiff’s prima facie case \"by showing that his lower price ... was made in good faith to meet an equally low price of a competitor.” Id. § 13(b). . A plaintiff who prevails in a suit alleging ”injur[y] in his business or property by reason of anything forbidden in the antitrust laws,” which includes the Robinson-Patman Act, is entitled to \"recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s" }, { "docid": "20713884", "title": "", "text": "Plaintiffs bring a claim under the Robinson-Patman Act (“RPA”), 15 U.S.C. § 13, et seq., which makes it unlawful for persons “engaged in commerce ... to discriminate in price between different purchasers of commodities of like grade and quality....” The RPA was enacted in response to the comparative competitive advantage of large purchasers, who could induce advertising allowances, rebates, and special services from sellers due to their size. Small independent stores were at a “hopeless competitive disadvantage” compared to large stores and thus the RPA was enacted “to eliminate these inequities.” FTC v. Simplicity Pattern Co., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079 (1959). To survive a motion to dismiss on a RPA claim, a plaintiff must allege that “(1) the defendant discriminated in price between different purchasers of commodities of like grade and quality, and (2) the effect of that discrimination was to substantially lessen competition or tend to create a monopoly in any line of com merce.” Schwartz v. Sun Co., 276 F.3d 900, 903-04 (6th Cir.2002) (citing D.E. Rogers Assocs., Inc. v. Gardner-Denver Co., 718 F.2d 1431, 1438-39 (6th Cir.1983)). In their complaint, Plaintiffs allege that Defendant Duke discriminated in price between different purchasers of its sold commodity, electricity (all of which is of like grade and quality), and provide allegations laying out with specificity how this discrimination took place on a continuous basis between Defendants and certain favored commercial customers, within the same geographic market as Plaintiffs, from January 2005 to 2009. (See First Am. Compl. ¶¶ 3, 18, 21-24, 50.) Plaintiffs also allege the specific amount of price discrimination (in the form of payments or rebates to favored customers) in 2005: $15 million. (Id. If 21.) One subclass of Plaintiffs, sellers of goods and services, compete in the same market as the favored customers and allege that they have lost profits as a result of the discriminatory rebates and the competitive advantage thus provided to favored customers. (Id. ¶ 50.) Defendants first argue that electricity is not a “commodity” within the meaning of the RPA, citing a single district court case, City of" }, { "docid": "13536655", "title": "", "text": "any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * Title 15 U.S.C.A. § 13(e) provides: “It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.” . Hereinafter referred to as Consolidated. . Bruce’s Juices v. American Can Company, 1946, 330 U.S. 743, 67 S.Ct. 1015, 91 L.Ed. 1219; Chicago Sugar Co. v. American Sugar Refining Co., 7 Cir., 1949, 176 F.2d 1; General Shale Products Corporation v. Struck Construction Co., 6 Cir., 1942, 132 F.2d 425; U. S. v. Borden Co., D.C., 1953, 111 F.Supp. 562, and A. J. Goodman & Son v. United Lacquer Mfg. Corp., D.C., 1949, 81 F.Supp. 890, 892, where the court said: “Here there is only one purchaser * * *. It is not enough that a prospective purchaser, the plaintiff, would have had to pay a higher price if it did buy. There must be actual sales at two different prices to two different actual buyers.” . Shaw's, Inc., v. Wilson-Jones Co., 3 Cir., 1939, 105 F.2d 331, 333, where the court said: “The discrimination in price referred to must be practiced ‘between different purchasers’. Therefore at least two purchases must have taken place. The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the marketplace for the purpose of purchasing. In other words, it does not mean a prospective purchaser, or one who wishes to pur- - chase * * *. Past purchases or conversations in respect to possible future purchases ■ are insufficient.” Chicago Seating Co. v. S. Karpen" }, { "docid": "2142055", "title": "", "text": "of school scissors for which it should have received the 5% discount. The price differential on these purchases, therefore, is $336.63. The second type of damages sought by the plaintiff — lost profits on anticipated sales for the years 1974-1978 — are not recoverable. Because of the nature of the bid-award sale procedure through which the plaintiff and its competitors sold to the Milwaukee schools, a bidder who does not win the contract award in question does not make a purchase since it has no order to fill. The Robinson-Patman Act prohibits two sales of the same product to different purchasers at different prices. Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29, 34-35 (7th Cir. 1976). “[N]o single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination.” Bruce’s Juices v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1021, 91 L.Ed. 1219 (1947). One who merely seeks to purchase does not qualify as a purchaser. Chicago Seating Co. v. S. Karpen & Bros., 177 F.2d 863 (7th Cir. 1949). For this reason, the plaintiff is not entitled to damages for lost sales. Thus, the only damages the plaintiff may recover are the $336.63, representing the price differential. Such amount trebled pursuant to 15 U.S.C. § 15, yields a total damage award of $1,009.89. The plaintiff has also requested injunctive relief restraining the defendant from discriminating against the plaintiff and in favor of the distributors. I am not convinced that there is a significant threat of injury from a violation that is likely to continue or reoccur. The plaintiff now knows what the requirements are for attaining the status of distributor and can receive the discount if it meets those requirements. Under the circumstances, I do not believe that an injunction is warranted. The plaintiff, having succeeded in proving its antitrust claim, is entitled to an award of attorney’s fees as part of its costs. 15 U.S.C. § 15. However, in view of the modest actual damages established by the plaintiff and the absence of" }, { "docid": "14803555", "title": "", "text": "have crystallized the rule that an indi vidual can have no cause of action under Section 2(a) of the Clayton Act unless he is an actual purchaser from the person charged with the discrimination. In Shaw’s, Inc., v. Wilson-Jones Co., 3 Cir., 1939, 105 F.2d 331, 333, we stated: “The discrimination in price referred to must be practiced ‘between different purchasers’. Therefore at least two purchases must have taken place. The term purchasers means simply one who purchases, a buyer, a vendee.” Klein did purchase Lionel products, but not from Lionel. It follows that the necessary requisite of two purchasers from the same vendor is not met and Klein therefore can claim no protection under the Act as a direct purchaser. The construction put on the term “purchaser” in Section 2(a) of the Clayton Act must also be placed on that term in Section 3 of the Robinson-Pat-man Act. These sections are parts of the same law and must be construed harmoniously. The court below properly placed such a construction on Section 3 and construed competitors as meaning “competing purchasers from the same seller.” D.C.D.Del.1956, 138 F.Supp. 560, 566. Thus Klein has no basis of recovery under Section 3. There is also some question as to whether an individual can have a cause of action under Section 3 since that section may have been intended to provide only a criminal penalty for prescribed violations of Section 2 of the Clayton Act. See Vance v. Safeway Stores, D.C.D.N.Mex.1956, 137 F.Supp. 841. We need not decide what is the intended purpose of Section 3 since the instant case is determinable on the showing that Klein was not the type of purchaser required by the Act. While Klein cannot claim to be a direct purchaser from Lionel, he hopes to obtain relief under the Act by other means. He argues that as a customer of a purchaser he falls within the language of Section 2(a), “* * * or with customers of either of them”. These words do not include customers of purchasers within the category of a purchaser required by the Act." }, { "docid": "18400511", "title": "", "text": "not deny a distributor the right to deal, or refuse to deal, with any customer, as long as it does so independently. Monsanto Co. v. Spray-Rite Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Therefore, the essence of a Section 1 claim is concerted action. Terry’s Floor Fashions, Inc. v. Burlington Industries, Inc., 763 F.2d 604, 610 (4th Cir.1985). Neither the Complaint nor the evidence presented to the Court in opposition to the Defendant’s motion for summary judgment presents even a suggestion that the Defendant combined with any other distributors or dealers in its refusal to sell motorcycles to the Plaintiff. Since there exists no genuine issue of material fact concerning the independence of the action taken by the Defendant, summary judgment is appropriate as to any claim under Section 1 of the Sherman Act. (4) Summary judgment is also appropriate as to any claim the Plaintiff may pursue under Section 2 of the Sherman Act, 15 U.S.C. § 2. Section 2 prohibits monopoly or attempt to monopolize. No evidence of either is present in this case. (5) Section 2 of the Clayton Act, which is commonly known as the RobinsonPatman Act, 15 U.S.C. § 13, prohibits price discrimination. To establish a violation of the Robinson-Patman Act, a plaintiff must show that the seller made at least two actual sales to two different purchasers at different prices. Black Gold, Ltd. v. Rockwool Industries, Inc., 729 F.2d 676, 682-83 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 178, 83 L.Ed.2d 113 (1984); L & L Oil Co. v. Murphy Oil Corp., 674 F.2d 1113, 1120 (5th Cir.1982). “When a seller refuses to sell to one buyer, the requisite price discrimination between two buyers is lacking.” Black Gold Ltd., 729 F.2d at 683. Even if the Defendant’s requirement that the Plaintiff pay the delinquency in its parts account were construed as an unfavorable capital condition on the purchase of motorcycles that other delinquent dealers did not have to meet, the record does not support a claim of price discrimination. The Plaintiff’s Complaint is based solely on the Defendant’s" } ]

[ { "docid": "13615435", "title": "", "text": "of the hearing that it will hold pursuant to Rule 55(b)(2) in determining whether to enter a default judgment. This language of the rule itself confirms the discretion of the trial court to hold such hearings “as it deems necessary and proper.” Fed.R.Civ.P. 55(b). This provides the trial court with discretion to require, at a hearing under Rule 55(b)(2), some proof of the facts that are necessary to a valid cause of action or to determine liability. See Peerless Industries, Inc. v. Herrin Illinois Cafe, Inc., 593 F.Supp. 1339, 1341 (E.D.Mo.1984), aff'd without opinion 774 F.2d 1172 (8th Cir.1985); Wright, Miller and Kane, at § 2688. Entry of default does not entitle the non-defaulting party to a default judgment as a matter of right. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir.1990); Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.1984) cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir.1983). The factors to be considered for entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiffs substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-2 (9th Cir.1986) (citation omitted). Given the conclusory nature of Valley’s allegations regarding the knowing or fraudulent nature of the alleged false oaths, the bankruptcy court acted within its discretion in requiring a hearing to consider proof of the facts necessary to deny the discharge. In connection with this hearing, the bankruptcy court acted within its discretion in considering the testimony of the Villegases, who were subpoenaed and relied upon by Valley to establish its case, in determining that the evidence presented by Valley Oak did not prove its case and in refusing to enter default judgment in favor of the appellant." } ]

[ { "docid": "13582830", "title": "", "text": "of action to support a prima facie case. See Bui, 188 B.R. at 276. The court has wide discretion under Rule 55 to consider whether the evidence presented supports a claim and warrants judgment for the plaintiff. See Wells Fargo Bank v. Beltran (In re Beltran), 182 B.R. 820, 823-24 (9th Cir. BAP 1995); Villegas, 132 B.R. at 746; see generally 10A Charles Alan WRIGHT, Arthur R. Miller & Mary Kay Kane, Federal Practice and PROCEDURE: Civil § 2685 (3d ed.1998). Bankruptcy courts frequently exercise their discretion to require that a plaintiff prove up a prima facie case when a plaintiff creditor seeks default judgment against a defendant debtor who has failed to answer a § 523 non-dischargeability claim. See AT & T Universal Card Services Corp. v. Sziel (In re Sziel), 206 B.R. 490, 493 (Bankr.N.D.Ill.1997); Beltran, 182 B.R. at 823; Villegas, 132 B.R. at 746. This practice is motivated by the risk that a creditor may obtain a default judgment, regardless of the merits of the complaint, against an honest debtor who is in such a precarious financial condition that the debtor cannot afford to defend a non-dis-chargeability claim. See Sziel, 206 B.R. at 492. Factors for the court to consider in determining whether to award a default judgment include (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiffs substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute on the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy favoring decisions on the merits. See Villegas, 132 B.R. at 746; Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986). The general rule is that default judgments are ordinarily disfavored, and that cases should be decided on their merits whenever reasonably possible. See Eitel 782 F.2d at 1472. In addition, as in Eitel, plaintiff in this case seeks a judgment of several million dollars. Further, in this court’s experience, plaintiffs in § 523 adversary proceedings are frequently unable to prove a prima facie" }, { "docid": "20663371", "title": "", "text": "Federal Rule of Civil Procedure 55(b)(2) authorizes courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading. Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n. 9 (3d Cir.1990) (“When a defendant fails to appear ..., the district court or its clerk is authorized to enter a default judgment based solely on the fact that the default has occurred.”). The entry of a default judgment is largely a matter of judicial discretion, although the Third Circuit has emphasized that such “discretion is not without limits, however, and we repeatedly state our preference that cases be disposed of on the merits whenever practicable.” Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir.1984) (citations omitted). Although the Court should accept as true the well-pleaded factual allegations of the Complaint, the Court need not accept the moving party’s legal conclusions or allegations relating to the amount of damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990); Directv, Inc. v. Asher, No. 03-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006) (citing Charles A. Wright, Arthur R. Miller & Mary Kay Kane, 10A Federal Practice and Procedure § 2688, at 58-59, 63 (3d ed.1998)). Consequently, before granting a default judgment, the Court must first ascertain whether “the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” Asher, 2006 WL 680533, at *1 (citing Wright, et al., § 2688, at 63); DirecTV, Inc. v. Croce, 332 F.Supp.2d 715, 717 (D.N.J.2004). III. DISCUSSION A. Trademark Infringement, Counterfeiting, and False Designation of Origin Federal trademark infringement, 15 U.S.C. § 1114(l)(a) , and a false designation of origin claim, 15 U.S.C. § 1125(a)(1)(A), are measured by identical standards pursuant to the Lanham Act. A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir.2000). To establish either Lanham Act claim, the record must demonstrate that plaintiff (1) has a valid and legally protect-able mark; (2) owns the mark; and (3) the defendant’s use" }, { "docid": "20990531", "title": "", "text": "must do more than allege the plaintiffs entitlement to relief. A complaint has to “show” such entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009) (internal citations omitted). Complaints grounded in fraud are governed by the heightened pleading requirements of F.R.B.P. 7009, which makes applicable to adversary proceedings F.R.C.P. 9(b). The Amended Complaint alleges fraud under § 523(a) and § 727(a), which therefore requires a heightened pleading requirement. Fed.R.Civ.P. 9(b); Kwasnik v. Permahos, 2011 WL 748144, at *2 (Bankr.D.N.J. Feb. 24, 2011); In re Glunk, 343 B.R. 754, 757-58 (Bankr.E.D.Pa.2006); In re Kilroy, 354 B.R. 476, 488 (Bankr.S.D.Tex.2006) aff'd sub nom. Kilroy v. Guerriero, No. 06-3320, 2007 WL 1456006 (S.D.Tex. May 15, 2007). Federal Rule of Civil Procedure 9(b) requires a party alleging fraud to “state with particularity the circumstances constituting fraud.” Fed. R.Civ.P, 9(b). The Third Circuit has held that when a claim “sound[s] in fraud” the complaint requires “well-pleaded allegations of fraudulent misrepresentations or omissions.” In re Rockefeller Ctr. Properties, Inc. Sec. Litig., 311 F.3d 198, 212 (3d Cir.2002) (citing, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1417 (3d Cir.1997); In re Westinghouse Sec. Litig., 90 F.3d 696, 707 (3d Cir.1996)). When a motion to dismiss is filed, I consider the complaint as well as attached exhibits and matters of public record. Pension Ben. Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir.1993); Taylor v. Henderson, 2015 WL 452405, *1 (D.Del., Jan. 30, 2015). Further, I may consider an indisputably authentic document the -defendant attaches as an exhibit to-a motion to dismiss, if the plaintiffs claims are based on the document. Pension Ben. Guar. Corp., 998 F.2d at 1196; also see, Miller v. Clinton County, 544 F.3d 542, 550 (3d Cir.2008). The Federal Rules of Evidence ap-ply to proceedings before United States bankruptcy judges. Fed.R.Evid. 1101(a); In re Barnes, 266 B.R. 397, 403 (8th Cir. BAP 2001). Federal Rule of Evidence 201 allows a federal court to take judicial notice of facts that are not subject to reasonable dispute. For example, a bankruptcy court may take" }, { "docid": "8800402", "title": "", "text": "law simply because the defendant has not opposed the adversary proceeding.”); Miller v. Kasden (In re Kasden), 209 B.R. 236, 238 (8th Cir. BAP 1997), appeal dismissed, 141 F.3d 1288 (8th Cir.1998) (“[A] default judgment may not be entered on a complaint that fails to support the claim for relief and on appeal, a defaulted defendant may always challenge the legal sufficiency of the complaint allegations.”). Moreover, the court has the discretion in each case to determine whether entry of default judgment is proper and “may conduct a hearing requiring some proof [from the plaintiff] of the facts that must be established in order to determine [the debtor’s] liability.” Citibank USA, N.A. v. Spring (In re Spring), No. 04-3007, 2005 WL 588776, at *2 (Bankr.D.Conn. Mar. 7, 2005) (internal quotation marks omitted). At the court’s discretion, such proof may be made by affidavit. American Express Centurion Bank v. Truong (In re Truong), 271 B.R. 738, 742 (Bankr.D.Conn.2002). The plaintiff must demonstrate a prima facie case by competent evidence in order to obtain a default judgment. See In re Spring, 2005 WL 588776, at *2. See also Oceanic Trading Corp. v. Vessel Diana, 423 F.2d 1, 4 (2d Cir.1970) (“Unless there are very unusual circumstances to justify it,” default judgment must be supported by admissible evidence.). The plaintiff has demonstrated a prima facie case when “a factfinder could reasonably find every element that the plaintiff must ultimately prove to prevail in the action.” Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir.1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 and reh’g denied, 523 U.S. 1041, 118 S.Ct. 1341, 140 L.Ed.2d 501 (1998) (abrogated on other grounds by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). V. FIRST COUNT A. Applicable Law 1. Bankruptcy Code § 727(a)(2)(B) Appreciative that denial of a debtor’s discharge “imposes an extreme penalty for wrongdoing,” the United States Court of Appeals for the Second Circuit in In re Chalasani, 92 F.3d 1300, 1310 (2d Cir.1996), has instructed that Section 727 “must be" }, { "docid": "9936219", "title": "", "text": "by default, not liability or legal conclusions”); Larance v. Bayh, No. 3:94-CV-182RM, 1995 WL 46718, *1 (N.D.Ind. Jan. 18, 1995), aff'd, 85 F.3d 631 (7th Cir.1996); Weft, Inc. v. G.C. Investment Assocs., 630 F.Supp. 1138, 1141 (E.D.N.C.1986), aff'd 822 F.2d 56 (4th Cir.1987); In re Cruz, 198 B.R. 330, 332 (Bankr.S.D.Cal.1996); In re Wildlife Center, Inc., 102 B.R. 321, 325 (Bankr.E.D.N.Y.1989). See also 10A CHARLES AlaN Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Proced., Civil 3d, § 2688 at 447-48 (1998); 6 J. Moore & W. Taggart, Moore’s Federal Practice ¶ 55.03[2] at 55-20 (2d Ed.1996). “Even after default it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit to mere conclusions of law.” Wildlife Center, 102 B.R. at 325. To be entitled to entry of a judgment by default, the “plaintiff must demonstrate a prima facie case by competent evidence.” In re Bui, 188 B.R. 274, 276 (Bankr.N.D.Ca.1995). “Although a defendant may technically be in default, the plaintiffs claim against him is not necessarily established. The court must consider whether the plaintiffs allegations are sufficient to state a claim for relief. If the plaintiffs claim lacks merit and is unsupported by the law, the court may deny a motion for default judgment despite the technical default.” In re Wall, 127 B.R. 353, 355 (Bankr.E.D.Va.1991) (citations omitted). A trial court has wide discretion in determining whether to enter a default judgment, and its decision will not be overturned, unless' there is an abuse of discretion. Mason & Hanger—Silas Mason Co. v. Metal Trades Council of Amarillo, 726 F.2d 166, 168 (5th Cir.1984) (“The court could have entered a default judgment but chose not to do so. We do not find an abuse of discretion.”); Schiff v. State of R.I., 199 B.R. 438, 441 (D.R.I.1996) (“The decision to enter a default judgment is a decision committed to the ‘sound judicial discretion’ of the trial judge.”); Sziel, 206 B.R. at 493 (“Entry of a judgment of default is discretionary with the trial judge" }, { "docid": "8800401", "title": "", "text": "See Katz v. Araujo (In re Araujo), 292 B.R. 19, 22 (Bankr.D.Conn.2003) (revocation of discharge by default judgment). Entry of default does not automatically lead to entry of default judgment by the court. Valley Oak Credit Union v. Villegas (In re Villegas), 132 B.R. 742, 746 (9th Cir. BAP 1991) (“[E]ntry of default does not automatically entitle the nonde-faulting party , to entry of a default judgment regardless of the fact that the effect of entry of a default is to deem allegations admitted.”). Rather, “it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688, at 63 (3d ed.1998). See also Talbert v. City Mortgage Servs. (In re Talbert), 268 B.R. 811, 813 n. 2 (Bankr.W.D.Mich.2001), subsequently aff'd, 344 F.3d 555 (6th Cir.2003) (stating that the “court may not grant the plaintiff relief which is not supported by the law simply because the defendant has not opposed the adversary proceeding.”); Miller v. Kasden (In re Kasden), 209 B.R. 236, 238 (8th Cir. BAP 1997), appeal dismissed, 141 F.3d 1288 (8th Cir.1998) (“[A] default judgment may not be entered on a complaint that fails to support the claim for relief and on appeal, a defaulted defendant may always challenge the legal sufficiency of the complaint allegations.”). Moreover, the court has the discretion in each case to determine whether entry of default judgment is proper and “may conduct a hearing requiring some proof [from the plaintiff] of the facts that must be established in order to determine [the debtor’s] liability.” Citibank USA, N.A. v. Spring (In re Spring), No. 04-3007, 2005 WL 588776, at *2 (Bankr.D.Conn. Mar. 7, 2005) (internal quotation marks omitted). At the court’s discretion, such proof may be made by affidavit. American Express Centurion Bank v. Truong (In re Truong), 271 B.R. 738, 742 (Bankr.D.Conn.2002). The plaintiff must demonstrate a prima facie case by competent evidence in order to obtain a default judgment." }, { "docid": "5716522", "title": "", "text": "solely on its submitted proofs where defendant neither responded to plaintiffs submissions with respect to its claimed damages nor requested a hearing with respect to damages), report and recommendation adopted, 2008 U.S. Dist. LEXIS 95503, at *2 (S.D.N.Y. Nov. 19, 2008). Where, on a damages inquest, a plaintiff fails to demonstrate its damages to a reasonable certainty, the court should decline to award any damages, even though liability has been established through default. See Griffiths v. Francillon, No. CV 10-310KJFB) (GRB), 2012 WL 1341077, at *1, 2012 U.S. Dist. LEXIS 54681, at *2 (E.D.N.Y. Jan. 30, 2012) (recommending that no damages be awarded because motion papers alone were insufficient to support an award of damages), report and recommendation adopted, 2012 WL 1354481, at *1, 2012 U.S. Dist. LEXIS 54683, at *3 (E.D.N.Y. Apr. 13, 2012); Dor Yeshurim, Inc. v. A Torah Infertility Medium of Exch., No. CV 10-2837(JFB)(WDW), 2011 WL 7285038, at *5, 2011 U.S. Dist. LEXIS 153153, at *14-15 (E.D.N.Y. Aug. 10, 2011) (finding that “Complaint and plaintiffs papers in support [were] woefully inadequate to support any monetary relief,” and thus recommending that neither profits nor damages be awarded), report and recommendation adopted, 2012 WL 464000, at *1-2, 2012 U.S. Dist. LEXIS 17655, at *3 (E.D.N.Y. Feb. 10, 2012); Liberty Mut. Ins. Co. v. Luxury Transp. Mgmt. Inc., No. CV 07-0608(RJD)(JO), 2009 U.S. Dist. LEXIS 124326, at *38-39 (E.D.N.Y. Mar. 19, 2009) (finding that plaintiff failed to establish that it was entitled to any damages by virtue of defendant’s liability for negligent and intentional misrepresentation, or breach of contract, and recommending that the court award no damages to plaintiff for these claims), report and recommendation adopted, 2009 WL 1033177, at *1, 2009 U.S. Dist. LEXIS 32253, at *1 (E.D.N.Y. Apr. 15, 2009). II. ADEQUACY OF PLAINTIFF’S PLEADED CLAIMS Without a response from Defendants, this Court must first determine whether the allegations in Plaintiffs Complaint are sufficiently pleaded to establish Defendants’ liability. See Bambu Sales, Inc., 58 F.3d at 854 (stating that “[a] default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability” (citation and internal quotation" }, { "docid": "13582829", "title": "", "text": "it also seeks a determination that the debt is not subject to the debtor’s discharge. In all other default cases, Rule 55(b)(2) requires a plaintiff to apply to the court for a default judgment. In such cases, the entry of default against a defendant does not automatically entitle a plaintiff to judgment. See Valley Oak Credit Union v. Villegas (In re Villegas), 132 B.R. 742, 746 (9th Cir. BAP 1991). The court has broad discretion under Rule 55(b)(2) to “conduct such hearings ... as it deems necessary and proper” in order to “establish the truth of any averment by evidence .... ” Under this rule, the court may require a plaintiff to demonstrate a prima facie case by competent evidence in a prove-up trial to obtain a default judgment. See Villegas, 132 B.R. at 746; TeleVideo Systems Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir.1987); General Electric Capital Corp. v. Bui (In re Bui), 188 B.R. 274, 276 (Bankr.N.D.Cal.1995). In such a hearing, the plaintiff must demonstrate each of the elements of a cause of action to support a prima facie case. See Bui, 188 B.R. at 276. The court has wide discretion under Rule 55 to consider whether the evidence presented supports a claim and warrants judgment for the plaintiff. See Wells Fargo Bank v. Beltran (In re Beltran), 182 B.R. 820, 823-24 (9th Cir. BAP 1995); Villegas, 132 B.R. at 746; see generally 10A Charles Alan WRIGHT, Arthur R. Miller & Mary Kay Kane, Federal Practice and PROCEDURE: Civil § 2685 (3d ed.1998). Bankruptcy courts frequently exercise their discretion to require that a plaintiff prove up a prima facie case when a plaintiff creditor seeks default judgment against a defendant debtor who has failed to answer a § 523 non-dischargeability claim. See AT & T Universal Card Services Corp. v. Sziel (In re Sziel), 206 B.R. 490, 493 (Bankr.N.D.Ill.1997); Beltran, 182 B.R. at 823; Villegas, 132 B.R. at 746. This practice is motivated by the risk that a creditor may obtain a default judgment, regardless of the merits of the complaint, against an honest debtor who is" }, { "docid": "4452681", "title": "", "text": "373 B.R. 890 (Bankr.E.D.Ark.2007); In re Ajaka, 370 B.R. 426 (Bankr.N.D.Ga.2007); In re Tubman, 364 B.R. 574 (Bankr.D.Md.2007); In re McFeeley, 362 B.R. 121 (Bankr.D.Vt.2007); In re Simonson, 2007 WL 703542, 2007 Bankr. LEXIS 790 (Bankr.D.N.J. Mar. 2, 2007); In re Rice, 392 B.R. 35 (Bankr.W.D.N.Y.2006); In re Pope, 351 B.R. 14 (Bankr.D.R.I.2006); In re Murray, 350 B.R. 408 (Bankr.S.D.Ohio 2006); In re Brandon, 349 B.R. 130 (Bankr.M.D.N.C.2006); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373 (Bankr.W.D.Pa.2006); In re Williams, 346 B.R. 361 (Bankr.E.D.Pa.2006); In re Harris, 342 B.R. 274 (Bankr.N.D.Ohio 2006); In re Jones, 339 B.R. 360 (Bankr.E.D.N.C.2006); In re Moon, 339 B.R. 668 (Bankr.N.D.Ohio 2006); In re Johnson, 335 B.R. 805 (Bankr.W.D.Tenn.2006). . Vitalich v. Bank of N.Y. Mellon, 2016 WL 4205691, 2016 U.S. Dist. LEXIS 105779 (N.D.Cal. Aug. 10, 2016); St. Anne's Credit Union v. Ackell, 490 B.R. 141 (D.Mass.2013); Reswick v. Reswick (In re Reswick), 446 B.R. 362 (9th Cir. B.A.P. 2011); In re Akwa, 2016 WL 67219, 2016 Bankr. LEXIS 27 (Bankr.D.Md. Jan. 5, 2016); In re Wright, 533 B.R. 222 (Bankr.S.D.Tex.2015); In re Wilson, 2014 WL 183210, 2014 Bankr. LEXIS 194 (Bankr.D.Conn. Jan. 15, 2014); In re Whitescorn, 2013 WL 1121393, 2013 Bankr. LEXIS 974 (Bankr.D.Or. Mar. 14, 2013); In re Hart, 2012 WL 6644703, 2012 Bankr. LEXIS 6005 (Bankr.D.Idaho Nov. 23, 2012); In re Furlong, 426 B.R. 303 (Bankr.C.D.Ill.2010); In re Daniel, 404 B.R. 318 (Bankr.N.D.Ill.2009); In re Cannon, 365 B.R. 908 (Bankr.E.D.Mo.2007); In re Curry, 362 B.R. 394 (Bankr.N.D.Ill.2009); In re Jupiter, 344 B.R. 754 (Bankr.D.S.C.2006); In re Parker, 336 B.R. 678 (Bankr.S.D.N.Y.2006). . For example, § 362(a)(2) prohibits \"the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case....” 11 U.S.C. § 362(a)(2) (emphasis added). . E.g., the automatic stay prohibits “any act to create, perfect, or enforce any lien against property of the estate[.]” 11 U.S.C. § 362(a)(4) (emphasis added). .The automatic stay does not apply to \"the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of" }, { "docid": "8800405", "title": "", "text": "bankruptcy.” United States Trustee v. Standiferd (In re Standiferd), No. 07-1076, 2008 WL 5273690, at *8 (Bankr.D.N.M. Dec. 17, 2008) (citation and internal quotation marks omitted). To prevail under the provision, the plaintiff must prove that (1) the debtor, (2) transferred or concealed, (3) property of the estate, (4) with the intent to hinder, delay or defraud a creditor, (5) after the filing of the petition. See Poliquin v. Cox (In re Cox), No. 06-1045, 2009 WL 57523, at *4 (Bankr.D.N.H. Jan. 6, 2009); Noland v. Johnson (In re Johnson), 387 B.R. 728, 749 (Bankr.S.D.Ohio 2008); Colonial Bank v. Johnson (In re Johnson), 301 B.R. 590, 596 (Bankr.N.D.Ala.2003). The plaintiff “bears the ultimate burden of proving, by a preponderance of the evidence, the essential elements of an alleged objection to discharge.” Cadlerock Joint Venture II, L.P. v. Beaudoin (In re Beaudoin), No. 03-2018, 2007 WL 1020787, at *5 (Bankr.D.Conn. Mar. 30, 2007) (Krechevsky, J.), subsequently aff'd, 388 B.R. 6 (D.Conn.2008) (citation and internal quotation marks omitted). Cf. Fed. R. Bankr.P. 4005. However, if the Plaintiff establishes a prima facie case under Section 727(a)(2)(B), then the burden shifts to the Debtor to refute the evidence. In re Beaudoin, supra at *5. See also Clark v. Hammeken (In re Hammeken), 316 B.R. 723, 728 (Bankr.D.Ariz.2004). Section 727(a)(2)(B) requires a showing of actual intent to hinder, delay or defraud; a showing of constructive intent is insufficient. Harker v. West (In re West), 328 B.R. 736, 752 (Bankr.S.D.Ohio 2004). Because a debtor ordinarily will not admit to intentionally hindering, delaying or defrauding creditors, “[fraudulent intent may be inferred based upon the surrounding facts and circumstances [and t]he debtor’s course of conduct is relevant to this inquiry.” In re Standiferd, 2008 WL 5273690, at *8 (citations omitted). See also In re Johnson, 301 B.R. at 597. 2. Bankruptcy Code §§ 541(a) and 1306(a) Except with respect to Section 541(a)(7) (discussed below) and with certain other exceptions not relevant here, only prepetition property interests of the debtor become “property of the estate” pursuant to Bankruptcy Code § 541(a). See 11 U.S.C.A. § 541(a) (West 2009) (“The" }, { "docid": "12603510", "title": "", "text": "BAP 2006); Abernathy, LLC v. Smith, No. 1:13— CV-03801-RWS, 2014 WL 4925654, at *4-5 (N.D. Ga, Sept. 30, 2014); Chekroun v. Weil (In re Weil), No. 3:12cv462 (SRU), 2013 WL 1798898, at *3 (D. Conn. Apr. 29, 2013); U.S. Bank N.A. v. Mortimore (In re Mortimore), No. 11-955 (RMB), 2011 WL 6717680, at *5 (D.N.J. Dec. 21, 2011); In re Roach, 555 B.R. 840, 842-48 (Bankr. M.D. Ala. 2016); In re Hale, 535 B.R. 520, 527-28 (Bankr. E.D.N.Y. 2015); In re Rodriguez, 487 B.R. 275, 286-88 (Bankr. D.N.M. 2013); In re Williford, No. 13-31738, 2013 WL 3772840, at *2-3 (Bankr. N.D. Tex, July 17, 2013); In re Scott-Hood, 473 B.R. 133, 135-40 (Bankr. W.D. Tex. 2012) (analysis departs from majority and minority approaches and yet holds that section 362(c)(3)(A) terminates with respect to (1) debtor individually, (2) debtor’s exempt property ’that stands as collateral for a debt of debtor, and (3) certain leases); In re Rinard, 451 B.R. 12, 17-20 (Bankr. C.D. Cal. 2011); In re Alvarez, 432 B.R. 839, 840-43 (Bankr. S.D. Cal. 2010); In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010); In re Robinson, 427 B.R. 412, 414 (Bankr. W.D. Mich. 2010); In re Burnette, No. 09-00699-8-JRL, 2009 WL 961807, at *1-2 (Bankr. E.D.N.C. Apr, 2, 2009); In re Graham, No, 07-62339-fra11, 2008 WL 4628444, at *2-3 (Bankr. D. Or. Oct. 17, 2008); In re Milledge, No. 08-62839, 2008 WL 7866897, at *1-2 (Bankr. N.D. Ga. Apr. 10, 2008); In re Ajaka, 370 B.R. 426, 429 (Bankr. N.D. Ga. 2007); In re McFeeley, 362 B.R. 121, 124-26 (Bankr. D. Vt. 2007); In re Stanford, 373 B.R. 890, 893-95 (Bankr. E.D. Ark. 2007); In re Simonson, No. 06-22833 (MBK), 2007 WL 703542, at *1-2 (Bankr. D.N.J. Mar. 2, 2007); In re Taylor, No. 07-3105 5-KRH, 2007 WL 1234932, at *4-5 (Bankr. E.D. Va. Apr. 26, 2007); In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006); In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006); In" }, { "docid": "19511502", "title": "", "text": "to dismiss. However, to survive a motion for summary judgment, the plaintiff must still present competent medical evidence of causation and severity of his emotional distress....\"); Carbone v. City of New Castle , No. 2:15-CV-1175, 2016 WL 406291, at *12 (W.D. Pa. Feb. 3, 2016) (denying motion to dismiss despite lack of allegations of competent medical evidence); St. Clair v. Borough of New Brighton , No. 2:16-00667-TFM, 2016 WL 4396171, at *5 (W.D. Pa. Aug. 18, 2016) (same); Mascarini v. Quality Employment Servs. & Training , No. 1:10-CV-1546, 2011 WL 332425, at *9 (M.D. Pa. Jan. 31, 2011) (same); Schultz v. Hughesville Borough , No. 4:10-CV-0262, 2010 WL 5147519, at *7 n.9 (M.D. Pa. Dec. 13, 2010) (same) (internal citations and quotations omitted); E.N. v. Susquehanna Twp. Sch. Dist. , No. 1:09-CV-1727, 2010 WL 4853700, at *19 (M.D. Pa. Nov. 23, 2010) (same); Sullivan v. Warminster Twp. , No. 07-4447, 2010 WL 2164520, at *10 (E.D. Pa. May 27, 2010) (same); Hall v. Raech , No. CIV.A. 08-5020, 2009 WL 811503, at *7 (E.D. Pa. Mar. 25, 2009) (same). But see Rosenberg v. Thomas Jefferson Univ. Hosp., Inc. , No. 15-4208, 2016 WL 2766504, at *2 (E.D. Pa. May 13, 2016) ; Buttermore v. Loans , No. CV 15-1514, 2016 WL 308875, at *9 (W.D. Pa. Jan. 25, 2016) ; McComb v. Morgan Stanley & Co. , No. 07-1049, 2007 WL 4150786, at *8 (W.D. Pa. Nov. 19, 2007) ; Doe v. Equifax Servs., Inc. , No. CIV. A. 88-3872, 1989 WL 57348, at *9 (E.D. Pa. May 26, 1989). 42 U.S.C § 1985(3). Farber v. City of Paterson , 440 F.3d 131, 134 (3d Cir. 2006) (internal citation omitted); see also McCleester v. Mackel , 2008 WL 821531, at *26, 2008 U.S. Dist. LEXIS 27505, at *92 (W.D. Pa Mar. 27, 2008) (citing Griffin v. Breckenridge , 403 U.S. 88, 101, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (\"The language requiring intent to deprive of equal protection...means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy...must aim at" }, { "docid": "10036276", "title": "", "text": "Fireman’s Fund, No. C 94-2684 TEH, 1996 WL 75314, *2 (N.D.Cal. Feb. 13, 1996). Granting or denying a motion for default judgment is a matter within the court’s discretion. Elektra Entertainment Group Inc. v. Bryant, No. CV 03-6381 GAF (JTLx), 2004 WL 783123, *1 (C.D.Cal. Feb. 13, 2004); see also Sony Music Entm’t Inc. v. Elias, No. CV 03-6387 DT (RCX), 2004 WL 141959, *3 (C.D.Cal. Jan. 20, 2004). The Ninth Circuit has directed that courts consider the following factors in deciding whether to enter default judgment: (1) the possibility of prejudice to plaintiff, (2) the merits of plaintiff’s substantive claims, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning the material facts; (6) whether defendant’s default was the product of excusable neglect, and (7) the strong public policy favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986); see also Bryant, 2004 WL 783123 at *1-2. Once a party’s default has been entered, the factual allegations of the complaint, except those concerning damages, are deemed to have been admitted by the non-responding party. See Fed. R.Civ. Proc. 8(b)(6); see also, e.g., Geddes v. United Fin.Group, 559 F.2d 557, 560 (9th Cir.1977) (stating the general rule that “upon default[,] the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true”). The court, however, must still “consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2688, at 63 (1998) (footnote omitted); see also Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir.1992) (“[Njecessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default”); Doe v. Qi, 349 F.Supp.2d 1258, 1272 (N.D.Cal.2004) (“[Although] the factual allegations of [the] complaint together with other competent evidence submitted by the moving party are normally" }, { "docid": "8800400", "title": "", "text": "Debtor knowingly and fraudulently in, or in connection with the above captioned bankruptcy case, made a false oath or account.” (A.P. Doc. I.D. No. 1 ¶55.) The Third Count alleges in relevant part: “[B]y giving sworn testimony at the Chapter 7 ... Meeting during which she failed to disclose the purchase of the ... Stock to ... [the Chapter 7 Trustee], the Debtor knowingly and fraudulently in, or in connection with the above captioned bankruptcy case, made a false oath or account.” (Id. ¶ 59.) IV. DEFAULT JUDGMENT STANDARD A court may enter default judgment against a party when that party has failed to plead or otherwise defend his/her/ its side of the case. That principle is governed by Rule 55 of the Federal Rules of Civil Procedure, made applicable herein by Rule 7055 of the Federal Rules of Bankruptcy Procedure. A debtor who is named as a defendant in an adversary proceeding with respect to matters relating to discharge is always deemed to have appeared in the adversary proceeding for purposes of Rule 55(b)(2). See Katz v. Araujo (In re Araujo), 292 B.R. 19, 22 (Bankr.D.Conn.2003) (revocation of discharge by default judgment). Entry of default does not automatically lead to entry of default judgment by the court. Valley Oak Credit Union v. Villegas (In re Villegas), 132 B.R. 742, 746 (9th Cir. BAP 1991) (“[E]ntry of default does not automatically entitle the nonde-faulting party , to entry of a default judgment regardless of the fact that the effect of entry of a default is to deem allegations admitted.”). Rather, “it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688, at 63 (3d ed.1998). See also Talbert v. City Mortgage Servs. (In re Talbert), 268 B.R. 811, 813 n. 2 (Bankr.W.D.Mich.2001), subsequently aff'd, 344 F.3d 555 (6th Cir.2003) (stating that the “court may not grant the plaintiff relief which is not supported by the" }, { "docid": "9936218", "title": "", "text": "default and default judgment are often submitted simultaneously to a court, the two procedural steps are analytically independent, and each step has distinct consequences. The entry of default does not automatically entitle the nondefaulting party to the entry of a default judgment. In re Beltran, 182 B.R. 820, 823 (9th Cir. BAP 1995); In re Villegas, 132 B.R. 742, 746 (9th Cir. BAP 1991); In re Ripple, 242 B.R. 60, 63 (Bankr.M.D.Fla.1999); In re Sziel, 206 B.R. 490, 493 (Bankr.N.D.Ill.1997), reconsideration denied, 209 B.R. 712. Instead, the general effect of an entry of default is to deem the allegations contained in a complaint as admitted. Beltran, 182 B.R. at 828; Sziel, 206 B.R. at 493; In re Cruz, 198 B.R. 330, 332 (Bankr.S.D.Ca.1996). Accordingly, a defaulting party may not attack the factual allegations in a complaint; however, that does not mean that the party admits to the legal conclusions made in the complaint. Soshnik v. Bruens, 851 F.2d 361, 1988 WL 69804, *1 (9th Cir. June 22, 1988) (Unpublished opin.) (“only factual allegations are admitted by default, not liability or legal conclusions”); Larance v. Bayh, No. 3:94-CV-182RM, 1995 WL 46718, *1 (N.D.Ind. Jan. 18, 1995), aff'd, 85 F.3d 631 (7th Cir.1996); Weft, Inc. v. G.C. Investment Assocs., 630 F.Supp. 1138, 1141 (E.D.N.C.1986), aff'd 822 F.2d 56 (4th Cir.1987); In re Cruz, 198 B.R. 330, 332 (Bankr.S.D.Cal.1996); In re Wildlife Center, Inc., 102 B.R. 321, 325 (Bankr.E.D.N.Y.1989). See also 10A CHARLES AlaN Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Proced., Civil 3d, § 2688 at 447-48 (1998); 6 J. Moore & W. Taggart, Moore’s Federal Practice ¶ 55.03[2] at 55-20 (2d Ed.1996). “Even after default it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit to mere conclusions of law.” Wildlife Center, 102 B.R. at 325. To be entitled to entry of a judgment by default, the “plaintiff must demonstrate a prima facie case by competent evidence.” In re Bui, 188 B.R. 274, 276 (Bankr.N.D.Ca.1995). “Although a defendant may technically be in" }, { "docid": "6325143", "title": "", "text": "admit conclusions of law” when a plaintiff seeks a default judgment. Nishimatsu Const., 515 F.2d at 1206. Instead, “[t]here must be a sufficient basis in the pleadings for the judgment entered.” Id. at 1206. Besides the pleadings, a court may also consider evidence presented in the form of an affidavit or declaration. See Antoine, 66 F.3d at 111 (“Use of affidavits in granting default judgments does not violate ... due process[.]”); Super Stop No. 701, Inc., 2009 WL 5068532 at *2 n. 4. The undersigned therefore reviews Plaintiffs declaration testimony, the well-pleaded allegations in her complaint and the reasonable inferences from these allegations to determine whether Plaintiff has stated claims for relief. See DIRECTV, Inc., 318 F.Supp.2d at 1127; see also United States v. Kahn, 164 Fed.Appx. 855, 858 (11th Cir. Jan.17, 2006) (“[A] default judgment may not stand on a complaint that fails to state a claim.”). In other words, “[e]ven after default, ... it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” 10A Wright, Miller & Kane, Fed. Pract. & Proc. § 2688 (3d ed.). The undersigned first turns to whether Plaintiff has presented sufficient evidence and allegations to establish liabili ty for her FDCPA claims before examining damages, attorney’s fees, and costs. B. FDCPA Liability The FDCPA seeks to remedy abusive, deceptive, and unfair debt collection practices by debt collectors against consumers. See 15 U.S.C. § 1692(e); LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010). To prevail on an FDCPA claim, a plaintiff must establish that: (1) [she] [has] been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a “debt collector” under the Act; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA. Buckley v. Bayrock Mortg. Corp., Civ. No. 1:09-cv-1387-TWT, 2010 WL 476673, *6 (N.D.Ga. Feb. 5, 2010) (Thrash, J., adopting Vineyard, M.J.) (quoting Beadle v. Haughey, No. Civ." }, { "docid": "12603511", "title": "", "text": "In re Dowden, 429 B.R. 894, 902-03 (Bankr. S.D. Ohio 2010); In re Robinson, 427 B.R. 412, 414 (Bankr. W.D. Mich. 2010); In re Burnette, No. 09-00699-8-JRL, 2009 WL 961807, at *1-2 (Bankr. E.D.N.C. Apr, 2, 2009); In re Graham, No, 07-62339-fra11, 2008 WL 4628444, at *2-3 (Bankr. D. Or. Oct. 17, 2008); In re Milledge, No. 08-62839, 2008 WL 7866897, at *1-2 (Bankr. N.D. Ga. Apr. 10, 2008); In re Ajaka, 370 B.R. 426, 429 (Bankr. N.D. Ga. 2007); In re McFeeley, 362 B.R. 121, 124-26 (Bankr. D. Vt. 2007); In re Stanford, 373 B.R. 890, 893-95 (Bankr. E.D. Ark. 2007); In re Simonson, No. 06-22833 (MBK), 2007 WL 703542, at *1-2 (Bankr. D.N.J. Mar. 2, 2007); In re Taylor, No. 07-3105 5-KRH, 2007 WL 1234932, at *4-5 (Bankr. E.D. Va. Apr. 26, 2007); In re Tubman, 364 B.R. 574, 582-84 (Bankr. D. Md. 2007); Bankers Trust Co. of Cal. v. Gillcrese (In re Gillcrese), 346 B.R. 373, 373-77 (Bankr. W.D. Pa. 2006); In re Brandon, 349 B.R. 130, 131-32 (Bankr. M.D.N.C. 2006); In re Harris, 342 B.R, 274, 276-280 (Bankr. N.D. Ohio 2006); In re Hollingsworth, 359 B.R, 813, 814 (Bankr. D. Utah 2006); In re Johnson, 335 B.R. 805, 806-07 (Bankr. W.D. Tenn. 2006); In re Jones, 339 B.R. 360, 363-65 (Bankr. E.D.N.C. 2006); In re Moon, 339 B.R. 668, 670-73 (Bankr. N.D. Ohio 2006); In re Pope, 351 B.R. 14, 15-16 (Bankr. D.R.I. 2006); In re Rice, 392 B.R. 35, 38 (Bankr. W.D.N.Y. 2006); In re Williams, 346 B.R. 361, 368-70 (Bankr. E.D. Pa. 2006). Minority: Reswick v. Reswick (In re Reswick), 446 B.R. 362, 365-73 (9th Cir. B.A.P. 2011); St. Anne’s Credit Union v. Ackell, 490 B.R. 141, 143-45 (D. Mass. 2013); In re Akwa, No. 15-26914-PM, 2016 WL 67219, at *1 (Bankr. D. Md. Jan. 5, 2016); In re Wilson, No. 13-21001 (ASD), 2014 WL 183210, at *1 (Bankr. D. Conn. Jan. 15, 2014); In re Jackola, No. 11-01278, 2011 WL 2518930, at *3 (Bankr. D. Haw. June 22, 2011); In re Furlong, 426 B.R. 303, 307 (Bankr. C.D. Ill. 2010); In re Daniel," }, { "docid": "20243730", "title": "", "text": "there is no opposition to the requested relief. E.D.Tenn. LBR 9013-1(f)(4). Unless excused by the court, the movant and any objecting party are required to appear at all scheduled hearings. The failure of ... an objecting party to attend a duly noticed hearing will be deemed a withdrawal of ... the objection to the motion ... Similarly, the court will consider the failure of any other noticed party to attend the hearing as a lack of opposition to the granting of the relief requested in the motion. Id. Motions are defined in the local rules to include objections to claims. E.D. Tenn. LBR 9013-l(a). Having found that the court may enter a default judgment, the court must consider whether it should exercise its discretion to do so. In determining whether the court should exercise its discretion, the court may review the merits of the claim. See HICA Education Loan Corp. v. Klugewicz, No. 1:11-cv-287, 2012 WL 6799752, at *1 (E.D.Tenn. Apr. 17, 2012); John v. Clayton (In re Clayton), Adv. No. 11-1135, 2012 WL 112940, at *1 (Bankr.E.D.Tenn. Jan. 12, 2012). It is fundamental that not all injuries are legally compensable; a tenet which may not be bypassed simply because a party fails to respond to a complaint ... Thus, among the considerations a court is to employ when determining the propriety of entering a judgment by default is whether there exists a sufficient basis in the pleading for the judgment’s entry; or similarly, whether a viable cause of action is alleged. Irby v. Fashion Bug (In re Irby), 337 B.R. 293, 294 (Bankr.N.D.Ohio 2005) (citations omitted). In addressing the merits of the complaint, or in this case, the objection, the factual allegations are admitted. Once the default is established, defendant has no further standing to contest the factual allegations of plaintiffs claim for relief. Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law. 10A Wright, Miller & Kane, Federal PRACTICE and Procedure § 2688, p." }, { "docid": "5271896", "title": "", "text": "proceeding for purposes of Rule 55(b)(2) of the Federal Rules of Civil Procedure. Batstone v. Emmerling (In re Emmerling), 223 B.R. 860, 867 (2d Cir. BAP 1997). See also 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2686 at 45 (3d ed.1998) (hereafter, “Wright, Miller & Kane ”) C‘[I]n order to ensure defendant an opportunity to defend against plaintiffs application, a court usually will try to find that there has been an appearance by defendant, which has the effect of requiring that notice of the application for a default be given.”). Although the Debtor has failed to plead, a motion for judgment by default is not granted as a matter of right. Rather, the court in its discretion may conduct a hearing “requiring] some proof [from the Plaintiff] of the facts that must be established in order to determine [the Debtor’s] liability.” Wright, Miller & Kane § 2688 at 60-61. See also Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir.1993) (“[A]s a general rule a ... court should grant a default judgment sparingly ... when the defaulting party is appearing pro se ”). At the court’s discretion, such proof may be made by affidavit. See Fed. R.Civ.P. 43(e) (made applicable here by Fed.R.Bankr.P. 9017). Further, “where the allegation is one of fraud, it is appropriate that the court [evaluate] ... the evidence to insure that the drastic remedy of a determination of nondischargeability is not entered without the presentation of a prima facie case.” United Counties Trust Co. v. Knapp (In re Knapp), 137 B.R. 582, 585 (Bankr.D.N.J.1992). See also General Electric Capital Corp. v. Bui (In re Bui), 188 B.R. 274, 276 (Bankr.N.D.Cal.1995) (“A plaintiff must demonstrate a prima facie case by competent evidence in order to obtain a [d]efault [judgment].”). A plaintiff has made a satisfactory prima facie showing where, from the evidence presented, “a factfinder could reasonably find every element that the plaintiff must ultimately prove to prevail in the action.” Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir.1997) (en banc), cert. denied, 522" }, { "docid": "20243731", "title": "", "text": "at *1 (Bankr.E.D.Tenn. Jan. 12, 2012). It is fundamental that not all injuries are legally compensable; a tenet which may not be bypassed simply because a party fails to respond to a complaint ... Thus, among the considerations a court is to employ when determining the propriety of entering a judgment by default is whether there exists a sufficient basis in the pleading for the judgment’s entry; or similarly, whether a viable cause of action is alleged. Irby v. Fashion Bug (In re Irby), 337 B.R. 293, 294 (Bankr.N.D.Ohio 2005) (citations omitted). In addressing the merits of the complaint, or in this case, the objection, the factual allegations are admitted. Once the default is established, defendant has no further standing to contest the factual allegations of plaintiffs claim for relief. Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law. 10A Wright, Miller & Kane, Federal PRACTICE and Procedure § 2688, p. 63 (3d. 11998)(footnote omitted); Bowers v. Banks (In re McKenzie), No. 11-1169, 2013 WL 1091634, at *708 (Bankr.E.D.Tenn. Mar. 5, 2013). See also In re Brunson, 486 B.R. 759, 768 (Bankr.N.D.Tex.2013)(“Under Bankruptcy Rule 7055, the entry of a default judgment is not automatic ... a default judgment is committed to the court’s discretion.”) (citations omitted); In re Rehman, 479 B.R. 238 (Bankr.D.Mass. 2012)(Court overruled objections to assigned credit card claims where creditors had not responded, but debtor had listed the original creditors). The Debtors have alleged that “the documentation as to ownership of the claim is not attached to the claim.” Objection at 2. While the court notes that there are gaps in the chain of title, there is a Bill of Sale attached to the proof of claim and the servicer has signed the proof of claim under oath. The Debtors equate the lack of documentation to lack of standing in their Brief. The court must determine whether that is enough for disallowance. IV. Analysis A. Claims Allowance A proof of claim which is" } ]

[ { "docid": "2004881", "title": "", "text": "or prevention of that particular condition in those who need such treatment or prevention. Thus, the '083 patent claims are properly interpreted to mean that the combination of folic acid and vitamin B12 must be administered to a human with a recognized need to treat or prevent macrocytic-megaloblastic anemia. Given that claim construction, we turn to the issue whether Jansen has raised a genuine issue of material fact regarding infringement. We conclude that he has not. Jansen has asserted indirect infringement by Rexall, premised on direct infringement by Rexall’s customers. See Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687 (Fed.Cir.1986) (“Absent direct infringement of the patent claims, there can be neither contributory infringement nor inducement of infringement.” (citations omitted)). Jansen’s theory of infringement is primarily based upon his construction of the claim that those who do not affirmatively know that they do not need to take steps to prevent or treat macrocytic-megaloblastic anemia are still “in need thereof.” As explained above, that claim construction is incorrect. Jansen nonetheless asserts that he has circumstantial evidence of direct infringement by Rexall’s customers under the claim construction we and the district court have adopted. Specifically, he contends that Rexall’s formulation, having folic acid and vitamin B12 in such large quantities as his claims call for, as well as Rexall’s labeling stating that “[i]t is especially important to take B-12 along with Folic acid because Folic acid can mask a B-12 deficiency,” are evidence that some customers do knowingly take the Rexall product to treat or prevent macrocytic-megaloblastic anemia. While Jansen is correct that it is theoretically possible that some of Rexall’s customers do take the Rexall product knowingly to treat or prevent macrocytic-megaloblastic anemia, and therefore directly infringe his patent, his evidence is quite weak. In fact, he has shown no more than a theoretical possibility or “metaphysical doubt,” which is insufficient to create a genuine issue of material fact. See Anderson, 477 U.S. at 261, 106 S.Ct. 2505 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The" } ]

[ { "docid": "23326449", "title": "", "text": "District Court Decision The district court ruled that Dynacore was collaterally estopped from arguing against the Special Master’s claim construction that we affirmed in Datapoint Dynacore has not appealed this ruling, and the defendants have not raised any issues of claim construction. The district court adopted the Special Master’s claim construction. In light of the undisputed claim construction, the only infringement issue remaining is whether the manufacturers of the accused products are liable for direct or indirect infringement of the '732 Patent. See Caterpillar, Inc. v. Deere & Co., 224 F.3d 1374, 1379 (Fed.Cir.2000). Indirect infringement, whether inducement to infringe or contributory infringement, can only arise in the presence of direct infringement, though the direct infringer is typically someone other than the defendant accused of indirect infringement. See, e.g., Jansen v. Rexall Sundown, Inc., 342 F.3d 1329, 1334 (Fed.Cir.2003) (defendant vendor was accused of indirect infringement based upon allegations that its customers directly infringed plaintiffs patent). All of Dynacore’s allegations are premised on the assertion that networks complying with the IEEE 1394 Standard directly infringe the '732 Patent. To establish this requisite underlying direct infringement, Dynacore is required to show that IEEE 1394 compliant networks meet each limitation of the '732 Patent claims, either literally or under the doctrine of equivalents. See Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., 347 F.3d 1314 (Fed.Cir.2003). Dynacore restricted its proof to issues relating to literal infringement. The district court ruled that IEEE 1394 compliant networks do not directly infringe the '732 Patent, leaving implicit Dynacore’s consequent failure to prove its allegations of the defendant’s indirect infringement. Dynacore, 243 F.Supp.2d at 42. In reaching this conclusion, the district court compared the claims of the '732 Patent to networks designed according to the specifications of the IEEE 1394 Standard. The district court noted that the defendants submitted three arguments to establish that the '732 Patent’s “equal peers” limitation, as construed by the Special Master, failed to read on IEEE 1394 com pliant networks: (1) The serial nature of 1394 Networks requires nodes to relay messages to each other, and is therefore inconsistent with the" }, { "docid": "23326462", "title": "", "text": "review the data to determine whether they are the intended recipient of the transmitted message.... Thus, the Master’s construction requiring that each node “hear” (as opposed to process or otherwise manipulate) every communication, simply reflects the inherent fact that each node must “hear” a communication before it can “recognize and accept only those transmissions addressed to it... Id. at 691. The substantive difference between the two cases is that Datapoint asked the court to compare the '732 Patent to an IEEE standard that combines serial star topologies and serial bridges, while Dynacore now asks the court to compare the '732 Patent to an IEEE standard based upon a serial tree topology. Though Datapoint conceded that the Special Master’s restriction of the '732 Patent to the parallel structures of its written description warranted a summary judgment of non-infringement for LANs compliant with the inherently serial IEEE 802.3u Standard, id. at 689, Dynacore now alleges that a tree architecture in which a hierarchy of serially-connected nodes can block communications from reaching all of their descendants infringes its patent for a parallel bus architecture in which all nodes must be “equal peers” capable of “hearing” all communications. This comparison answers the infringement analysis. The IEEE 1394 Standard and the '732 Patent teach two fundamentally different network architectures. There is nothing in the IEEE 1394 Standard implying that compliant networks will meet the “equal peers” limitation that is central to every claim in the '732 Patent. To the contrary, the requirements of the IEEE 1394 Standard suggest that most if not all compliant networks will not meet the “equal peers” limitation. Dynacore has not pointed to even a single network that both complies with the IEEE 1394 Standard and meets the “equal peers” limitation, nor has Dynacore presented anything other than speculation that such a network might actually exist. Dynacore has raised little other than “a theoretical possibility or ‘metaphysical doubt,’ which is insufficient to create a genuine issue of material fact.” Jansen, 342 F.3d at 1334 (citing Anderson, 477 U.S. at 261, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp.," }, { "docid": "23326451", "title": "", "text": "Special Master’s requirement that each node has “direct access to all other nodes in the network;” (2) The tree topology imposes a necessary hierarchy that is fundamentally inconsistent with the “equal peers” limitation; and (3) IEEE 1394 Networks fail to meet the Special Master’s requirement that “all data frames transmitted by each node are heard by all other nodes” because there are circumstances in which such data frames are not transmitted to all of the other nodes on the IEEE 1394 Network. The district court considered only the third of these arguments: [T]he IEEE 1394 Standard itself makes clear that compliant devices in network configuration do not satisfy the “equal peers” limitation of Claim 31. There are no material issues of fact in dispute because there is no need to go beyond the Datapoint claim construction and the clear language of the IEEE 1394 standard. Id. at 38. The district court further noted that Dynaeore’s expert affidavits did little but contradict the plain language of the IEEE 1394 Standard, and did not raise a dispute over material facts for trial. The district court granted the defendants’ motion for summary judgment of non-infringement, thereby holding the defendants not hable for either direct or indirect infringement. Dynacore appealed. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Standard of Review This court reviews the grant of summary judgment de novo, Genzyme Corp. v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1096 (Fed.Cir.2003); Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998); Blouin v. Spitzer, 356 F.3d 348, 356 (2nd Cir.2004), construing all facts in the light most favorable to the non-movant, Id.; Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of patent infringement requires a two-step analysis. The court must first interpret the claims to determine their scope" }, { "docid": "4115319", "title": "", "text": "of devices compliant with the IEEE 1394 Standard (“IEEE 1394 Networks”) do not read on a key limitation common to all of the independent claims of the ’732 Patent, as that limitation is construed in Data-point. The parties have provided written submissions and presented oral argument, all of which the Court has considered carefully, in connection with the pending motion. For the reasons that follow, Defendants’ motions for summary judgment in each of 01 Civ. 5012 and 01 Civ. 10798 are granted. BACKGROUND Plaintiff Dynacore Holdings Corporation is the successor to Datapoint Corporation (“Datapoint”), which filed a petition for relief under the Bankruptcy Code in May 2000. In 1996, Datapoint filed actions in the United States District Court for the Eastern District of New York against certain defendants, alleging that the defendants had infringed the ’732 Patent and a related patent (No. 5,088,879, hereinafter the “ ’879 patent”) by the manufacture, use and/or sale of products conforming to an industry standard called “IEEE 802.3u” (also known as “Fast Ethernet.”) The district court appointed a Special Master, who was authorized, among other duties, to conduct a Markman hearing for claim construction purposes. The Special Master issued a report construing certain claims in the ’732 the ’879 patents (the “Master’s Report”). The district court subsequently adopted the Master’s Report. Datapoint appealed the district court’s judgment to the Federal Circuit. In Datapoint, the Federal Circuit affirmed the Special Master’s claim construction. The ’732 Patent, titled “LAN with Dynamically Selectable Multiple Operational Capabilities,” relates to certain networks that connect nodes that communicate at a common speed, as well as nodes capable of communicating both at the common speed and at an enhanced speed, enabling the nodes to communicate with each other on a single network. Master’s Report at 7; (United States Patent No. 5,077,732, Ex. C to Declaration of George A. Riley in Support of Defendant’s Motion for Summary Judgment “Riley Decl.” at 1.) The ’732 Patent applies to such nodes that are connected in bus-type networks, i.e., ones in which the nodes are interconnected through a single logical point such that communications from" }, { "docid": "23326459", "title": "", "text": "in connection with other patents. Moreover, the Act expressly provides that the sale of a ‘staple article or commodity of commerce suitable for substantial non-infringing use’ is not contributory infringement.” Id. (citations omitted). Of more direct relevance to Dynacore, however, was the Supreme Court’s explanation that the statutory theories of indirect patent infringement, as developed through case law, “deny the patentee any right to control the distribution of unpat-ented articles unless they are unsuited for any commercial non-infringing use,” id. at 441, 104 S.Ct. 774 (citation omitted), because the “sale of an article which though adapted to an infringing use is also adapted to other and lawful uses, is not enough to make the seller a[n indirect] infringer. Such a rule would block the wheels of commerce.” Id. at 442, 104 S.Ct. 774 (citations omitted). The Sony standard for vicarious infringement liability, which the Supreme Court imported into copyright law from the narrow patent law reference to “a staple article or commodity of commerce suitable for substantial non-infringing use,” 35 U.S.C. § 271(c) (emphasis added), remains a valid articulation of patent law even beyond staple articles and commodities: The mere sale of a product capable of substantial non-infringing uses does not constitute, indirect infringement of. a patent. See, e.g., Jansen, 342 F.3d at 1332; Anton/Bauer, 329 F.3d at 1349. Dynacore must therefore either demonstrate that LANs compliant with the IEEE 1394 Standard necessarily infringe the '732 Patent, or point to a specific instance of direct infringement and restrict its suit to liability stemming from that specific instance. We must therefore determine whether all LANs compliant with the IEEE 1394 Standard directly infringe the '732 Patent, or whether there may also be substantial non-infringing configurations of IEEE 1394 compliant networks. We do not reach the defendant’s liability under § 271(b) or (c) if there are substantial non-infringing uses of the defendants’ products and there is no evidence of active and willful inducement. I. Infringement Analysis The comparison of '732 LANs to IEEE 1394 LANs raises questions parallel to those raised in Datapoint, 31 Fed.Appx. at 689-91, alleging infringement of the '732" }, { "docid": "23326454", "title": "", "text": "held vicariously liable. Hewlett-Packard Co. v. Bausch & Lomb, 909 F.2d 1464, 1469 (Fed.Cir.1990); Moba v. Diamond Automation, 325 F.3d 1306, 1318 (Fed.Cir. 2003). Determinations of knowledge or of intent relevant to patent law issues pose challenging factual determinations that we review after a trial to ascertain whether the trial court misapplied the law, made clearly erroneous findings of fact, or abused its discretion. See Molins PLC v. Textron, 48 F.3d 1172, 1182 (Fed.Cir.1995). When we review such factual determinations de novo following a summary judgment, we construe all facts in the light most favorable to the non-movant. Mazzari, 323 F.3d at 1005. G. Claim Construction Dynacore is collaterally estopped from challenging the Special Master’s claim construction that we affirmed in Datapoint, 31 Fed.Appx. at 687. Del Mar Avionics, 836 F.2d at 1324. The entire analysis of direct infringement therefore rests on the factual comparison of each of the claim limitations to the accused device. See Bai, 160 F.3d 1350; Deering, 347 F.3d at 1324. H. Vicarious Liability and Indirect Infringement To prevail under a theory of indirect infringement, Dynacore must first prove that the defendants’ actions led to direct infringement of the '732 Patent. Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687 (Fed.Cir.1986). Dynacore’s briefs evince confusion about how to demonstrate direct infringement as the first step towards establishing a defendant’s vicarious liability. Dynacore asserts, for example, that “[t]he district court’s decision rests on one network configuration. That configuration is a non-optimum configuration where a common node may rest between enhanced nodes[.]” Appellant Br. at 39. Dynacore similarly complains that “[t]he district court disregarded a configuration where all nodes are enhanced or where the common node is at the end of the physical network.” Id. at 39 n. 3. Dynacore thus seeks to establish the defendants’ broad vicarious liability by showing that a particular configuration of the defendants’ products, compliant with the IEEE 1394 Standard, would directly infringe the '732 Patent. In other words, Dynacore alleges that a hypothetical direct infringement suffices to establish the defendants’ broad vicarious liability across the entire category of IEEE 1394" }, { "docid": "23326463", "title": "", "text": "patent for a parallel bus architecture in which all nodes must be “equal peers” capable of “hearing” all communications. This comparison answers the infringement analysis. The IEEE 1394 Standard and the '732 Patent teach two fundamentally different network architectures. There is nothing in the IEEE 1394 Standard implying that compliant networks will meet the “equal peers” limitation that is central to every claim in the '732 Patent. To the contrary, the requirements of the IEEE 1394 Standard suggest that most if not all compliant networks will not meet the “equal peers” limitation. Dynacore has not pointed to even a single network that both complies with the IEEE 1394 Standard and meets the “equal peers” limitation, nor has Dynacore presented anything other than speculation that such a network might actually exist. Dynacore has raised little other than “a theoretical possibility or ‘metaphysical doubt,’ which is insufficient to create a genuine issue of material fact.” Jansen, 342 F.3d at 1334 (citing Anderson, 477 U.S. at 261, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Dynacore’s failure to prove direct infringement by any IEEE 1394 compliant network necessarily dooms its allegations of indirect infringement, because “[absent direct infringement of the claims of a patent, there can be neither contributory infringement nor inducement of infringement.” Met-Coil, 803 F.2d at 687. Dynacore therefore cannot even reach the question of the defendants’ vicarious liability for indirect infringement because the defendants have shown that their products will allow LAN designers to configure a substantial number of non-infringing networks. We hold that the defendants are not liable for direct infringement of the '732 Patent because their products are not LANs with at least three connected devices, and are not vicariously liable for indirect infringement of the '732 Patent under either § 271(b) or § 271(c) because their products are all capable of substantial non-infringing uses. Finally, Dynacore argues that the affidavits of its two experts, Kendyl Roman and Stephen Verderese, create a material factual dispute that renders sum mary judgment inappropriate. As the district court" }, { "docid": "4115317", "title": "", "text": "OPINION AND ORDER SWAIN, District Judge. Plaintiffs Dynacore Holding Corporation and Dynacore Patent Litigation Trust (eol-lectively “Dynacore” or “Plaintiffs”) have brought two separate actions, 01 Civ. 5912 and 01 Civ. 10798, alleging infringement of a patent for technology relating to networks that interconnect computers and related devices (each a “node”) in “local area networks” or “LANs.” The patent has been assigned United States Patent No. 5,077,732 (hereinafter the “ ’732 Patent”). The claims of the ’732 Patent are “directed generally to a method of communication between nodes within a network, wherein nodes have both enhanced and common [communication speed] capabilities.” (First Amended Complaint for Patent Infringement and Jury Demand, Dynacore Holdings Corp. v. U.S. Philips Corporation et al., dated July 5, 2001 (“Philips Complaint”) at ¶ 22; see also Amended Complaint for Patent Infringement and Jury Demand, Dynacore Holdings Corp. v. Sony Corporation of America, Inc. et al., dated January 22, 2003 (“Sony Complaint”), ¶ 19.) The Defendants in 01 Civ. 5012 and 01 Civ. 10798 include manufacturers of a variety of products, including semiconductors, printers and computers, which incorporate or utilize a certain digital interface known as the IEEE 1394 Standard for a High Performance Serial Bus (“IEEE 1394 Standard”). The IEEE 1394 Standard permits users to interconnect a variety of electronic devices. Plaintiffs allege generally that “[pjroducts incorporating the IEEE 1394 standard fall within the scope of the claimed subject matter of the ’732 patent” and that “[t]he IEEE 1394 standard utilizes technology which falls within the scope of the claimed subject matter of the ’732 patent.” (Philips Complaint at ¶¶ 3, 25; Sony Complaint at ¶¶ 3, 24.) The complaints do not specify the patent claims allegedly infringed by implementation of the IEEE 1394 Standard. Certain claim limitations of the ’732 Patent were recently construed in litigation originally commenced by Plaintiffs’ predecessor in interest. The claim construction in that ease was affirmed by the United States Court of Appeals for the Federal Circuit in Datapoint v. Standard Microsystems Corp., 31 Fed.Appx. 685 (Fed.Cir.2002) (“Datapoint ”). Defendants here have moved for summary judgment of non-infringement, arguing that networks" }, { "docid": "23326436", "title": "", "text": "In order for Dynacore to prevail under a theory of direct infringement, Dynacore must demonstrate that the defendants have used their devices to implement infringing LANs. Dynacore’s gravamen, although not clearly articulated in its brief to this court, appears to be that networks conforming to the IEEE 1394 Standard also conform to the teachings of the '732 Patent, and that manufacturers whose devices incorporate technology explicitly designed to facilitate the construction of IEEE 1394 compliant networks are thus liable for direct infringement, as well as for contributory infringement under 35 U.S.C. § 271(c) or inducement of infringement under 35 U.S.C. § 271(b). At oral argument, Dyna-core stated that its primary theories of liability were for indirect infringement— other than possible liability arising from directly infringing LANs in the headquarters of “some” of the defendants, an allegation that, as noted, remains unsupported speculation. We accept this statement, and consider Dynacore’s allegations of liability as not only for direct infringement, but also for contributory infringement and/or for inducement to infringe. We read the district court’s grant of summary judgment as a ruling that, as a matter of law, the defendants are neither directly liable nor vicariously liable for infringement by customers who may use the defendants’ products. Dynacore, 243 F.Supp.2d at 42. In order to prevail in this appeal, Dynacore must demonstrate factual disputes sufficient to render its direct and indirect infringement theories legally tenable. B. Litigation History In 1996, Datapoint brought four separate actions in the Eastern District of New York against numerous technology companies, alleging that these companies, by incorporating technology into their products that facilitates the implementation of the IEEE 802.3u (“802.3u” or “Fast Ethernet”) Standard, infringed the '732 Patent and the related United States Patent No. 5,088,879 (“the '879 Patent”). Neither the 802.3u Standard nor the '879 Patent are included in Dynacore’s allegations in the present case. Dynacore’s current allegations concern only the IEEE 1394 Standard (unrelated to 802.3u) and the '732 Patent. In addressing Datapoint’s allegations concerning the 802.3u Standard, the district court appointed a Special Master, who conducted a Markman hearing to construe the claims. Cf." }, { "docid": "23326464", "title": "", "text": "475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Dynacore’s failure to prove direct infringement by any IEEE 1394 compliant network necessarily dooms its allegations of indirect infringement, because “[absent direct infringement of the claims of a patent, there can be neither contributory infringement nor inducement of infringement.” Met-Coil, 803 F.2d at 687. Dynacore therefore cannot even reach the question of the defendants’ vicarious liability for indirect infringement because the defendants have shown that their products will allow LAN designers to configure a substantial number of non-infringing networks. We hold that the defendants are not liable for direct infringement of the '732 Patent because their products are not LANs with at least three connected devices, and are not vicariously liable for indirect infringement of the '732 Patent under either § 271(b) or § 271(c) because their products are all capable of substantial non-infringing uses. Finally, Dynacore argues that the affidavits of its two experts, Kendyl Roman and Stephen Verderese, create a material factual dispute that renders sum mary judgment inappropriate. As the district court noted, however, these experts contribute little other than a conclu-sory opinion that nodes that receive a meaningless “data prefix” signal stripped of message content actually “hear” the communication, thereby meeting the “equal peers” limitation. It is well settled that an expert’s unsupported conclusion on the ultimate issue of infringement is insufficient to raise a genuine issue of material fact, and that a party may not avoid that rule simply by framing the expert’s conclusion as an assertion that a particular critical claim limitation is found in the accused device. Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1046 (Fed.Cir.2000); Zelinski v. Brunswick Corp., 185 F.3d 1311, 1317 (Fed.Cir.1999); Phillips Petroleum Co. v. Huntsman Polymers Corp., 157 F.3d 866, 876 (Fed.Cir.1998). Dynacore’s expert’s opinions are precisely conclusory assertions, reached using words in ways that contradict their plain meaning, that a critical claim limitation is found in the accused device. The district court was correct in ruling that they did not create a material factual dispute for trial. See, Arthur A. Collins, 216 F.3d" }, { "docid": "23326435", "title": "", "text": "address a “local area network,” (“LAN”) with “at least three nodes” sharing a “common communication (or operating) capability,” at least two of which also share an “enhanced communication (or operating) capability,” that are all interconnected as “equal peers in a single network configuration.” In somewhat less technical terms, the '732 Patent teaches network designers how to design a LAN connecting computer devices with differing capabilities such that devices with an “enhanced” communication capability can take advantage of those enhancements without disrupting the operation of devices possessing only “common” capabilities. Dynacore alleges that companies whose products incorporate technology that facilitates the implementation of LANs compliant with the IEEE 1394 Standard for a High Performance Serial Bus (“IEEE 1394”) infringe the '732 Patent. Dyna-core’s legal assertions, as submitted to this court, appear to be incomplete. It is undisputed that the '732 Patent teaches the design of a specific type of LAN requiring at least three connected devices, and that the defendants’ products are not LANs, but rather individual devices containing technology conforming to the IEEE 1394 Standard. In order for Dynacore to prevail under a theory of direct infringement, Dynacore must demonstrate that the defendants have used their devices to implement infringing LANs. Dynacore’s gravamen, although not clearly articulated in its brief to this court, appears to be that networks conforming to the IEEE 1394 Standard also conform to the teachings of the '732 Patent, and that manufacturers whose devices incorporate technology explicitly designed to facilitate the construction of IEEE 1394 compliant networks are thus liable for direct infringement, as well as for contributory infringement under 35 U.S.C. § 271(c) or inducement of infringement under 35 U.S.C. § 271(b). At oral argument, Dyna-core stated that its primary theories of liability were for indirect infringement— other than possible liability arising from directly infringing LANs in the headquarters of “some” of the defendants, an allegation that, as noted, remains unsupported speculation. We accept this statement, and consider Dynacore’s allegations of liability as not only for direct infringement, but also for contributory infringement and/or for inducement to infringe. We read the district court’s grant of" }, { "docid": "23326450", "title": "", "text": "the '732 Patent. To establish this requisite underlying direct infringement, Dynacore is required to show that IEEE 1394 compliant networks meet each limitation of the '732 Patent claims, either literally or under the doctrine of equivalents. See Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., 347 F.3d 1314 (Fed.Cir.2003). Dynacore restricted its proof to issues relating to literal infringement. The district court ruled that IEEE 1394 compliant networks do not directly infringe the '732 Patent, leaving implicit Dynacore’s consequent failure to prove its allegations of the defendant’s indirect infringement. Dynacore, 243 F.Supp.2d at 42. In reaching this conclusion, the district court compared the claims of the '732 Patent to networks designed according to the specifications of the IEEE 1394 Standard. The district court noted that the defendants submitted three arguments to establish that the '732 Patent’s “equal peers” limitation, as construed by the Special Master, failed to read on IEEE 1394 com pliant networks: (1) The serial nature of 1394 Networks requires nodes to relay messages to each other, and is therefore inconsistent with the Special Master’s requirement that each node has “direct access to all other nodes in the network;” (2) The tree topology imposes a necessary hierarchy that is fundamentally inconsistent with the “equal peers” limitation; and (3) IEEE 1394 Networks fail to meet the Special Master’s requirement that “all data frames transmitted by each node are heard by all other nodes” because there are circumstances in which such data frames are not transmitted to all of the other nodes on the IEEE 1394 Network. The district court considered only the third of these arguments: [T]he IEEE 1394 Standard itself makes clear that compliant devices in network configuration do not satisfy the “equal peers” limitation of Claim 31. There are no material issues of fact in dispute because there is no need to go beyond the Datapoint claim construction and the clear language of the IEEE 1394 standard. Id. at 38. The district court further noted that Dynaeore’s expert affidavits did little but contradict the plain language of the IEEE 1394 Standard, and did not raise a dispute" }, { "docid": "23326460", "title": "", "text": "remains a valid articulation of patent law even beyond staple articles and commodities: The mere sale of a product capable of substantial non-infringing uses does not constitute, indirect infringement of. a patent. See, e.g., Jansen, 342 F.3d at 1332; Anton/Bauer, 329 F.3d at 1349. Dynacore must therefore either demonstrate that LANs compliant with the IEEE 1394 Standard necessarily infringe the '732 Patent, or point to a specific instance of direct infringement and restrict its suit to liability stemming from that specific instance. We must therefore determine whether all LANs compliant with the IEEE 1394 Standard directly infringe the '732 Patent, or whether there may also be substantial non-infringing configurations of IEEE 1394 compliant networks. We do not reach the defendant’s liability under § 271(b) or (c) if there are substantial non-infringing uses of the defendants’ products and there is no evidence of active and willful inducement. I. Infringement Analysis The comparison of '732 LANs to IEEE 1394 LANs raises questions parallel to those raised in Datapoint, 31 Fed.Appx. at 689-91, alleging infringement of the '732 Patent by technology companies whose products could be configured as networks compliant with the IEEE 802.3u Standard. The principal argument both here and in Datapoint is that the court “erred by limiting the claims to the preferred embodiment disclosed in the specification.” Id. at 689. We explained in Datapoint that because the only connectivity pattern of LANs taught in the patents is a bus-type LAN, (and though we were not explicit in Datapoint, it is a parallel bus-type LAN), the Special Master’s construction of the “equal peers” limitation as restricting the '732 Patent to LANs embodying the illustrated parallel bus was correct. Id. Dynacore’s next argument is that the court erred in requiring nodes to have direct access to all other nodes in the network so that all data frames transmitted by each node are “heard” by all other nodes. Id. at 690. But as we explained in Datapoint: [The] 732 patent specification makes quite clear that (1) all data being sent over the network have a source and destination address, and (2) all nodes" }, { "docid": "23326434", "title": "", "text": "GAJARSA, Circuit Judge. Dynacore Holdings Corp. and Dyna-core Patent Litigation Trust (collectively, “Dynacore”) appeal the February 13, 2003 grant of defendants’ motion for summary judgment of non-infringement of United States Patent No. 5,077,732 (“the '732 Patent”). Dynacore Holdings Corp. v. U.S. Philips Corp., 243 F.Supp.2d 31 (S.D.N.Y.2003). Because Dynacore has not identified any circumstances under which the accused products, which incorporate technology that facilitates the design of networks compliant with an explicitly hierarchical industry-standard architecture, infringe the parallel network architecture required to meet numerous limitations of the '732 Patent claims, the defendants may not be held liable for either direct or indirect infringement. We therefore affirm. BACKGROUND A. Dynacore’s Allegations of Infringement The '732 Patent for a “LAN with Dynamically Selectable Multiple Operational Capabilities” issued on December 31, 1991, and was assigned to Datapoint Corp. (“Da-tapoint”), the predecessor in interest to Dynacore. The '732 Patent contains sixty-six claims. Claims 1, 31, 57, 59, and 65 are independent. All of the other claims are dependent. All five of the independent claims share some common limitations: they address a “local area network,” (“LAN”) with “at least three nodes” sharing a “common communication (or operating) capability,” at least two of which also share an “enhanced communication (or operating) capability,” that are all interconnected as “equal peers in a single network configuration.” In somewhat less technical terms, the '732 Patent teaches network designers how to design a LAN connecting computer devices with differing capabilities such that devices with an “enhanced” communication capability can take advantage of those enhancements without disrupting the operation of devices possessing only “common” capabilities. Dynacore alleges that companies whose products incorporate technology that facilitates the implementation of LANs compliant with the IEEE 1394 Standard for a High Performance Serial Bus (“IEEE 1394”) infringe the '732 Patent. Dyna-core’s legal assertions, as submitted to this court, appear to be incomplete. It is undisputed that the '732 Patent teaches the design of a specific type of LAN requiring at least three connected devices, and that the defendants’ products are not LANs, but rather individual devices containing technology conforming to the IEEE 1394 Standard." }, { "docid": "23326438", "title": "", "text": "Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The Special Master issued a detailed report construing certain claim terms in the '732 and the '879 Patents (the “Master’s Report”). The district court subsequently adopted the Master’s Report. Datapoint stipulated that under the Special Master’s claim construction, the defendants would be entitled to summary judgment of non-infringement, and appealed the district court’s judgment to this court. We affirmed the Special Master’s claim construction, Datapoint Corp. v. Std. Microsystems Corp., 31 Fed. Appx. 685 (Fed.Cir.2002), and it remains binding upon Dynacore in the present matter. See, Del Mar Avionics, Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1324 (Fed.Cir.1987). Meanwhile, in May 2000, Datapoint filed for bankruptcy. Dynacore purchased certain of Datapoint’s patents, including the '732 Patent and the '879 Patent. Given the Special Master’s claim construction, and while the appeal was pending, Dyna-core asked the PTO to reexamine the '732 Patent in light of a 1987 article on network design by Michael Teener, a member of the IEEE board that subsequently recommended adoption of the IEEE 1394 Standard. On August 14, 2001, following several rounds of correspondence in which the PTO raised and Dynacore addressed issues relating to patentability, the PTO issued a Reexamination Certificate requiring no amendments to the '732 Patent. Dynacore filed the present actions in the Southern District of New York against two groups of defendants: the “Philips defendants,” Dynacore Holdings Corp. v. U.S. Philips Corp., on July 5, 2001; and the “Sony defendants,” Dynacore Holdings Corp. v. Sony Corp. of America, Inc., on January 22, 2003. All of the defendants manufacture devices that incorporate a digital interface to the IEEE 1394 Standard. The IEEE 1394 Standard, like the '732 Patent, teaches network designers how to connect devices with differing capabilities to a single LAN without sacrificing enhanced or optimized capabilities possessed by some but not all devices. C. LAN Technology A LAN is a collection of computers and/or peripheral devices in close geographic proximity interconnected to allow communication. Like most aspects of computer technology, LANs combine physical characteristics with software" }, { "docid": "23326437", "title": "", "text": "summary judgment as a ruling that, as a matter of law, the defendants are neither directly liable nor vicariously liable for infringement by customers who may use the defendants’ products. Dynacore, 243 F.Supp.2d at 42. In order to prevail in this appeal, Dynacore must demonstrate factual disputes sufficient to render its direct and indirect infringement theories legally tenable. B. Litigation History In 1996, Datapoint brought four separate actions in the Eastern District of New York against numerous technology companies, alleging that these companies, by incorporating technology into their products that facilitates the implementation of the IEEE 802.3u (“802.3u” or “Fast Ethernet”) Standard, infringed the '732 Patent and the related United States Patent No. 5,088,879 (“the '879 Patent”). Neither the 802.3u Standard nor the '879 Patent are included in Dynacore’s allegations in the present case. Dynacore’s current allegations concern only the IEEE 1394 Standard (unrelated to 802.3u) and the '732 Patent. In addressing Datapoint’s allegations concerning the 802.3u Standard, the district court appointed a Special Master, who conducted a Markman hearing to construe the claims. Cf. Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The Special Master issued a detailed report construing certain claim terms in the '732 and the '879 Patents (the “Master’s Report”). The district court subsequently adopted the Master’s Report. Datapoint stipulated that under the Special Master’s claim construction, the defendants would be entitled to summary judgment of non-infringement, and appealed the district court’s judgment to this court. We affirmed the Special Master’s claim construction, Datapoint Corp. v. Std. Microsystems Corp., 31 Fed. Appx. 685 (Fed.Cir.2002), and it remains binding upon Dynacore in the present matter. See, Del Mar Avionics, Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1324 (Fed.Cir.1987). Meanwhile, in May 2000, Datapoint filed for bankruptcy. Dynacore purchased certain of Datapoint’s patents, including the '732 Patent and the '879 Patent. Given the Special Master’s claim construction, and while the appeal was pending, Dyna-core asked the PTO to reexamine the '732 Patent in light of a 1987 article on network design by Michael Teener, a member of the IEEE board" }, { "docid": "4115318", "title": "", "text": "printers and computers, which incorporate or utilize a certain digital interface known as the IEEE 1394 Standard for a High Performance Serial Bus (“IEEE 1394 Standard”). The IEEE 1394 Standard permits users to interconnect a variety of electronic devices. Plaintiffs allege generally that “[pjroducts incorporating the IEEE 1394 standard fall within the scope of the claimed subject matter of the ’732 patent” and that “[t]he IEEE 1394 standard utilizes technology which falls within the scope of the claimed subject matter of the ’732 patent.” (Philips Complaint at ¶¶ 3, 25; Sony Complaint at ¶¶ 3, 24.) The complaints do not specify the patent claims allegedly infringed by implementation of the IEEE 1394 Standard. Certain claim limitations of the ’732 Patent were recently construed in litigation originally commenced by Plaintiffs’ predecessor in interest. The claim construction in that ease was affirmed by the United States Court of Appeals for the Federal Circuit in Datapoint v. Standard Microsystems Corp., 31 Fed.Appx. 685 (Fed.Cir.2002) (“Datapoint ”). Defendants here have moved for summary judgment of non-infringement, arguing that networks of devices compliant with the IEEE 1394 Standard (“IEEE 1394 Networks”) do not read on a key limitation common to all of the independent claims of the ’732 Patent, as that limitation is construed in Data-point. The parties have provided written submissions and presented oral argument, all of which the Court has considered carefully, in connection with the pending motion. For the reasons that follow, Defendants’ motions for summary judgment in each of 01 Civ. 5012 and 01 Civ. 10798 are granted. BACKGROUND Plaintiff Dynacore Holdings Corporation is the successor to Datapoint Corporation (“Datapoint”), which filed a petition for relief under the Bankruptcy Code in May 2000. In 1996, Datapoint filed actions in the United States District Court for the Eastern District of New York against certain defendants, alleging that the defendants had infringed the ’732 Patent and a related patent (No. 5,088,879, hereinafter the “ ’879 patent”) by the manufacture, use and/or sale of products conforming to an industry standard called “IEEE 802.3u” (also known as “Fast Ethernet.”) The district court appointed a Special" }, { "docid": "23326448", "title": "", "text": "serial; it is a tree. The standard includes a set of algorithms that optimize the tree’s configuration to ease communication — particularly across devices with differing capabilities. The IEEE 1394 Standard’s communication protocols take advantage of the tree topology and its ability to ease the implementation of discretionary decision-making. To cite just one example, message headers incorporate a tag known as a “speed code,” which specifies the speed capabilities necessary to understand the message body. Every node that receives a message looks to its children to see if they can understand a message requiring the specified speed code. If they can, the parent transmits the message. If they cannot, the parent transmits only a “data prefix,” which essentially serves as a “dummy” signal blocking the transmission of the incomprehensible message. Nodes receiving only this dummy signal are obviously unable to transmit the entire message to their own children — even if those children possess the enhanced capabilities needed to understand the message. These slower nodes serve as “speed blocks” capable of impeding communication. F. The District Court Decision The district court ruled that Dynacore was collaterally estopped from arguing against the Special Master’s claim construction that we affirmed in Datapoint Dynacore has not appealed this ruling, and the defendants have not raised any issues of claim construction. The district court adopted the Special Master’s claim construction. In light of the undisputed claim construction, the only infringement issue remaining is whether the manufacturers of the accused products are liable for direct or indirect infringement of the '732 Patent. See Caterpillar, Inc. v. Deere & Co., 224 F.3d 1374, 1379 (Fed.Cir.2000). Indirect infringement, whether inducement to infringe or contributory infringement, can only arise in the presence of direct infringement, though the direct infringer is typically someone other than the defendant accused of indirect infringement. See, e.g., Jansen v. Rexall Sundown, Inc., 342 F.3d 1329, 1334 (Fed.Cir.2003) (defendant vendor was accused of indirect infringement based upon allegations that its customers directly infringed plaintiffs patent). All of Dynacore’s allegations are premised on the assertion that networks complying with the IEEE 1394 Standard directly infringe" }, { "docid": "23326455", "title": "", "text": "theory of indirect infringement, Dynacore must first prove that the defendants’ actions led to direct infringement of the '732 Patent. Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687 (Fed.Cir.1986). Dynacore’s briefs evince confusion about how to demonstrate direct infringement as the first step towards establishing a defendant’s vicarious liability. Dynacore asserts, for example, that “[t]he district court’s decision rests on one network configuration. That configuration is a non-optimum configuration where a common node may rest between enhanced nodes[.]” Appellant Br. at 39. Dynacore similarly complains that “[t]he district court disregarded a configuration where all nodes are enhanced or where the common node is at the end of the physical network.” Id. at 39 n. 3. Dynacore thus seeks to establish the defendants’ broad vicarious liability by showing that a particular configuration of the defendants’ products, compliant with the IEEE 1394 Standard, would directly infringe the '732 Patent. In other words, Dynacore alleges that a hypothetical direct infringement suffices to establish the defendants’ broad vicarious liability across the entire category of IEEE 1394 compliant networks. This argument conflates two distinct requirements for establishing vicarious liability for indirect infringement. A defendant’s liability for indirect infringement must relate to the identified instances of direct infringement. Plaintiffs who identify individual acts of direct infringement must restrict their theories of vicarious liability — and tie their claims for damages or injunctive relief — to the identified act. See, e.g., Dow Chem. Co. v. Mee Indus., 341 F.3d 1370 (Fed.Cir.2003) (plaintiff alleged direct infringement of its method patent by defendant Florida Power Corp., and induced or contributory infringement by defendant Mee Industries, who supplied the equipment used in the direct infringement); RF Del., Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255 (Fed.Cir.2003) (holding that if plaintiff could establish, on remand, that defendant’s customers had used defendant’s products to directly infringe plaintiffs method patent, defendant could be held liable for either inducement to infringe or contributory infringement). Plaintiffs who identify an entire category of infringers (e.g., the defendant’s customers) may cast their theories of vicarious liability more broadly, and may consequently seek damages" }, { "docid": "23326461", "title": "", "text": "Patent by technology companies whose products could be configured as networks compliant with the IEEE 802.3u Standard. The principal argument both here and in Datapoint is that the court “erred by limiting the claims to the preferred embodiment disclosed in the specification.” Id. at 689. We explained in Datapoint that because the only connectivity pattern of LANs taught in the patents is a bus-type LAN, (and though we were not explicit in Datapoint, it is a parallel bus-type LAN), the Special Master’s construction of the “equal peers” limitation as restricting the '732 Patent to LANs embodying the illustrated parallel bus was correct. Id. Dynacore’s next argument is that the court erred in requiring nodes to have direct access to all other nodes in the network so that all data frames transmitted by each node are “heard” by all other nodes. Id. at 690. But as we explained in Datapoint: [The] 732 patent specification makes quite clear that (1) all data being sent over the network have a source and destination address, and (2) all nodes review the data to determine whether they are the intended recipient of the transmitted message.... Thus, the Master’s construction requiring that each node “hear” (as opposed to process or otherwise manipulate) every communication, simply reflects the inherent fact that each node must “hear” a communication before it can “recognize and accept only those transmissions addressed to it... Id. at 691. The substantive difference between the two cases is that Datapoint asked the court to compare the '732 Patent to an IEEE standard that combines serial star topologies and serial bridges, while Dynacore now asks the court to compare the '732 Patent to an IEEE standard based upon a serial tree topology. Though Datapoint conceded that the Special Master’s restriction of the '732 Patent to the parallel structures of its written description warranted a summary judgment of non-infringement for LANs compliant with the inherently serial IEEE 802.3u Standard, id. at 689, Dynacore now alleges that a tree architecture in which a hierarchy of serially-connected nodes can block communications from reaching all of their descendants infringes its" } ]

[ { "docid": "2075400", "title": "", "text": "recover the amount of its pre-petition overpayment. Ashland brought an action in the bankruptcy court, asking for a declaration that it had properly “recouped” its overpayment and that it would be entitled to recoup from future purchases the remaining amount it had overpaid. The bankruptcy court held that recoupment was improper because the debts did not arise from the “same transaction.” The district court affirmed that decision. In this appeal, Ashland contends that the district court erred in finding that a division order constitutes a series of separate contracts and that it construed the “same transaction” requirement for recoupment too narrowly. We conclude that recoupment is proper in this case. Recoupment originated as an equitable rule of joinder. It allowed adjudication in one suit of two claims that otherwise had to be brought separately under the common-law forms of action. Under recoupment, a defendant could meet a plaintiffs claim with a countervailing claim that arose “out of the same transaction.” See J. Moore, 3 Moore’s Federal Practice If 13.02, at 13-13 n. 1 (2d ed. 1985); 20 Am.Jur.2d, Counterclaim, Recoupment, and Setoff, §§ 16-18 (1965). Modern rules of pleading have diminished the importance of the common-law distinctions surrounding recoupment and its companion, setoff. Id.; see Fed.R. Civ.P. 13. But in bankruptcy, these distinctions remain important. In bankruptcy, both recoupment and setoff are sometimes invoked as exceptions to the rule that all unsecured creditors of a bankrupt stand on equal footing for satisfaction. Recoupment or setoff sometimes allows particular creditors preference over others. See Lee v. Schweiker, 739 F.2d 870, 875 (3d Cir. 1984); 4 Collier on Bankruptcy, 11 553.03 (15th ed. 1981). Setoff is allowed in only very narrow circumstances in bankruptcy. See 11 U.S.C. § 553; 4 Collier, supra, at 11 553.03. But a creditor properly invoking the re-coupment doctrine can receive preferred treatment even though setoff would not be permitted. Id. A stated justification for this is that when the creditor’s claim “arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation," } ]

[ { "docid": "22028846", "title": "", "text": "County of Orange, 183 B.R. at 615. Finally, the right of setoff is subject to the automatic stay provisions of Chapter 11. See 11 U.S.C. § 362(a)(7) (staying “the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor”). In contrast to setoff, recoupment “is the setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action, strictly for the purpose of abatement or reduction of such claim.” Collier ¶ 553.03, at 553-15 (emphasis in original). Under recoupment, a defendant is able to meet a plaintiffs claim “with a countervailing claim that arose ‘out of the same transaction.’ ” Ashland Petroleum Co. v. Appel (In re B & L Oil Co.), 782 F.2d 155, 157 (10th Cir.1986) (citations omitted). For this reason, recoupment has been analogized to both compulsory counterclaims and affirmative defenses. See, e.g., In re California Canners and Growers, 62 B.R. 18, 22 (9th Cir. BAP 1986) (Elliott, Bankruptcy J., concurring) (citation omitted). Recoupment, like setoff, has been applied in bankruptcy proceedings. See, e.g., In re B & L Oil Co., 782 F.2d at 157. However, there are distinctions between the two that are particularly important in bankruptcy. Id. Collier explains that the primary difference is that the limits placed on setoff under section 553 generally do not apply to recoupment claims. Collier states, for example, that “[t]he chief importance of the re-coupment doctrine in bankruptcy is that, unlike setoff, recoupment is often thought not to be subject to the automatic stay.” Collier ¶ 553.03, at 553-15—553-16 n. 5 (citations omitted). In addition, “[i]nvocation of re-coupment also relaxes the requirement of mutuality for setoff of debts as it relates to the pre or postpetition character of those debts.” Id. Collier offers the following rationale for this general rule: [I]n any suit or action between the estate and another, the defendant should be entitled to show that because of matters arising out of the transaction sued on, he or she is not liable in full for the" }, { "docid": "10235848", "title": "", "text": "entitled to a rebate on the remaining $97,778.33. This requires a determination of the meaning of the term “purchase” in the Rebate Agreement. 3.Recoupment DuPont also argues that it is entitled to recoup $97,778.33 due from the assignment of Olson’s claim against the amount due to Debtor under the Rebate Agreement. Resolution of this issue is a question of law. a. Recoupment standards The equitable doctrine of recoupment is “[t]he setting up of a demand arising from the same transaction as the plaintiff’s claim or cause of action strictly for the purpose of abatement or reduction of such claim. .... ” In re Drexel Burnham Lambert Group, Inc., 113 B.R. 830, 853 (Bankr.S.D.N.Y.1990) (citing 4 Lawrence P. King, Collier on Bankruptcy, ¶ 553.03, at 553-13 (15 ed. 1989)). Unlike setoff which is explicitly provided for in the Code and generally involves mutual debts arising from different transactions, recoupment is the setting up of a demand arising from the same transaction as the plaintiffs claim. While setoff, in effect, elevates an unsecured claim to a secured status, recoupment allows the creditor to assert that certain mutual claims extinguish one another. Lee v. Schweiker, 739 F.2d 870, 875 (3d Cir.1984). The justification for the recoupment doctrine is that where the creditor’s claim against the debtor arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable. Id. at 875 (citations omitted). The typical situation in which recoupment is invoked involves a credit and debt arising out of a transaction for the sale of goods or services. Specifically, creditors may recoup a claim for prepetition overpayment of advances or overestimates against a debtor’s postpetition claim under the same contract. See, e.g., Ashland Petroleum Co. v. Appel (In re B & L Oil Co.), 782 F.2d 155, 158-59 (10th Cir.1986); Centergas, Inc. v. Conoco, Inc. (In re Centergas, Inc.), 172 B.R. 844, 848 (Bankr.N.D.Tex.1994); In re Consumer Health Servs. of America, Inc., 171 B.R. 917, 922 (Bankr.D.D.C.1994)." }, { "docid": "22028845", "title": "", "text": "rationale for strict construction of the requirement has been explained as follows: [T]he mutuality requirement in bankruptcy should be strictly construed because set-offs run contrary to fundamental bankruptcy policies such as the equal treatment of creditors and the preservation of a reorganizing debtor’s assets: As Congress recognized, setoffs work against both the goal of orderly reorganization and the fairness principle because they preserve serendipitous advantages accruing to creditors who happen to hold mutual obligations, thus disfavoring other equally-deserving creditors and interrupting the debtor’s cash flow. Federal National Mortgage Assoc. v. County of Orange (In re County of Orange), 183 B.R. 609, 615 (Bankr.C.D.Cal.1995) (internal quotation marks and citation omitted). The right of setoff is permissive, not mandatory; its application “rests in the discretion of [the] court, which exercises such discretion under the general principles of [equity].” In re Cascade Roads, 34 F.3d at 763 (internal quotation marks and citation omitted); Collier ¶ 553.02, at 533-13 (citation omitted). “The burden of proving an enforceable right of setoff rests with, the party asserting the right.” In re County of Orange, 183 B.R. at 615. Finally, the right of setoff is subject to the automatic stay provisions of Chapter 11. See 11 U.S.C. § 362(a)(7) (staying “the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor”). In contrast to setoff, recoupment “is the setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action, strictly for the purpose of abatement or reduction of such claim.” Collier ¶ 553.03, at 553-15 (emphasis in original). Under recoupment, a defendant is able to meet a plaintiffs claim “with a countervailing claim that arose ‘out of the same transaction.’ ” Ashland Petroleum Co. v. Appel (In re B & L Oil Co.), 782 F.2d 155, 157 (10th Cir.1986) (citations omitted). For this reason, recoupment has been analogized to both compulsory counterclaims and affirmative defenses. See, e.g., In re California Canners and Growers, 62 B.R. 18, 22 (9th Cir. BAP 1986) (Elliott, Bankruptcy J., concurring)" }, { "docid": "13976257", "title": "", "text": "to satisfy plaintiff’s claim. In other words, recoupment goes to the justice of plaintiff’s claim and no affirmative judgment for any excess over the claim of plaintiff can be awarded thereon. (See 20 Am.Jur.2d, Counterclaim, Recoupment & Setoff, § 11 and § 12). Recoupment originated as an equitable rule of joinder. It allowed adjudication in one suit of two claims that otherwise had to be brought separately under the common law forms of action. Under recoupment, defendant could meet a plaintiff’s claim with the countervailing claim that arose “out of the same transaction.” (See J. Moore, 3 Moores Federal Practice, Page 13.02, at 1313 N. 1 (2nd Ed.1985); 20 Am. Jur.2d, Counterclaim, Recoupment & Set-off, § 16—§ 18 (1965). As further explained in 4 Collier on . Bankruptcy, 11553.03 (15th Ed.1984), re-coupment is not subject to the limitations on setoff in § 553 of the Bankruptcy Code; recoupment ... is the setting up of a demand arising from the same transaction as plaintiff’s claim or cause of action strictly for the purpose of abatement or reduction of such claim.... There is no element of preference here or of an independent offset but merely an arrival at a just and proper liability on the main issue. While the doctrine of setoff goes to mutual debts existing between debtor and creditor, recoupment deals with the amount of damages plaintiff is entitled to in a suit arising out of the same transaction. Since the doctrine of recoupment deals only with the amount of damages plaintiff is entitled to receive, the distinction between pre-petition and post-petition events does not apply. In bankruptcy, both the doctrine of setoff and recoupment have been adopted, setoff by statute, see 11 U.S.C. § 553, and recoupment by decision, the most recent being In re B & L Oil Company, 782 F.2d 155 (10th Cir., 1986). Debtor contends that DOT is attempting to set off their post-petition obligation to pay over to debtor-in-possession post-petition subsidy payments against the pre-petition obligation of debtor to turnover subsidy payments received pre-petition in excess of the amount it was entitled to. In support" }, { "docid": "18754747", "title": "", "text": "Canners as debtor in possession invoiced, shipped, and delivered to Military Distributors after the date of the Chapter 11 filing. Military Distributors contends that it is entitled to a setoff or credit of $68,810.52 for pre-petition debts owed by California Canners to Military Distributors. Before bankruptcy, California Canners sold and delivered goods to Military Distributors which subsequently, upon the order of California Canners, shipped goods to various military installations. Military Distributors billed California Canners for the goods it delivered plus service charges and drayage. California Canners in turn billed the government. California Canners was on the government’s approved list of suppliers; Military Distributors was not. California Canners received payment from the government but did not pay Military Distributors for several separate orders and shipments taking place before bankruptcy. The post-petition invoices of California Canners represent several shipments made in connection with several orders placed by Military Distributors after bankruptcy. Military Distributors argues that summary judgment should not have been granted since the parties disagree as to whether the claims arose from the “same transaction” and the bankruptcy court made no specific finding of fact in that respect. ISSUE Whether recoupment between post-petition and pre-petition claims arising from the same transaction is precluded and, if not, whether the claims here arise out of the same transaction. DISCUSSION Recoupment originated as an equitable rule of joinder. Under recoupment, a defendant could meet a plaintiffs claim with a countervailing claim that arose “out of the same transaction.” See J. Moore, 3 Moore’s Federal Practice ¶ 13.02, at 13-13 n. 1 (2d ed. 1985); See also In re B & L Oil Company, 782 F.2d 155 (10th Cir.1986). Modem rules of pleading have diminished the importance of the common-law distinctions between recoupment and setoff. Id. However, in bankruptcy the distinctions are important. Setoff is allowed in only very narrow circumstances in bankruptcy. 4 Collier on Bankruptcy ¶ 553.03 (15th ed. 1981). But a creditor properly invoking the recoupment doctrine can receive preferred treatment even though setoff would not be permitted. Id. The court in Lee v. Schweiker, 739 F.2d 870 (3d Cir.1984) stated: The" }, { "docid": "22028848", "title": "", "text": "plaintiffs claim. There is no element of preference here or of an independent claim to be set off, but merely an arrival at a just and proper liability on the main issue, and this would seem permissible without any reference to ... section 553(a). Collier ¶ 553.03, at 553-17 (citing Quittner, 202 F.2d at 816 n. 3). The Tenth Circuit has offered a similar rationale for treating setoff and recoupment differently in bankruptcy cases: In bankruptcy, both recoupment and setoff are sometimes invoked as exceptions to the rule that all unsecured creditors of a bankrupt stand on equal footing for satisfaction. Recoupment or setoff sometimes allows particular creditors preference over others. Setoff is allowed in only very narrow circumstances in bankruptcy. But a creditor properly invoking the recoupment doctrine can receive preferred treatment even though setoff would not be permitted. A stated justification for this is that when the creditor’s claim' arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable. In re B & L Oil Co., 782 F.2d at 157 (internal quotation marks and citations omitted) (cited in Collier ¶ 553.03, at 553-15—553-16 n. 5); see also Lee v. Schweiker, 739 F.2d 870, 875 (3rd Cir.1984); In re Harmon, 188 B.R. 421, 425 (9th Cir. BAP 1995) (“[T]he invocation of the recoupment doctrine promotes no preference problem. It is applied when there are countervailing claims arising from the same transaction ‘strictly for the purpose of abatement or reduction ....’”) (internal quotation marks and citation omitted); Photo Mechanical Services, Inc. v. E.I. DuPont De Nemours & Co., Inc. (In re Photo Mechanical Services, Inc.), 179 B.R. 604, 612 (Bankr.D.Minn.1995). It is true, as Newbery points out, that the rationales offered in the above authorities conflict with our holding in Quittner. In Quittner, we refused to allow a defendant to recoup prepayments made by that defendant to the plaintiff-debtor, finding that application of recoupment in the bankruptcy context “would interfere with the" }, { "docid": "4701794", "title": "", "text": "properly invokes setoff under § 553 in effect elevates an unsecured claim to a secured position to the extent that debtor has a mutual, prepetition claim against creditor thereby receiving a permissible preference over other creditors.” American Central, 60 B.R. at 590. See 11 U.S.C. § 506(a). Finally, timing is an issue when setoff is applied. To set off a claim after the bankruptcy petition has been filed, a creditor must meet the limits set forth in § 553 and must seek relief from the automatic stay. [T]he requirement of mutuality is of particular significance after the filing of a petition in bankruptcy. Because of the distinction between debtor and debtor-in-possession under the Bankruptcy Code, the majority of courts have concluded that the requisite element of mutuality of parties is lacking whenever a creditor attempts to offset a pre-petition debt against a post-petition debt. American Central, 60 B.R. at 590. In a comparison based on the elements set forth above, the doctrine of recoupment can clearly be distinguished from setoff in a bankruptcy setting. It has no greater effect than a defense to a claim, and hence should not be subject to the limitations on setoff. A recoupment claim arises out of the same transaction that forms the basis of the plaintiff’s cause of action. Its function is to reduce the amount demanded, but only to the extent of the plaintiff’s claim. Id. “In other words, recoupment goes to the justice of plaintiff's claim and no affirmative judgment for any excess over the claim of plaintiff can be awarded thereon.” Id. (citing 20 Am.Jur.2d, Counterclaims, Recoupment & Setoff, § 22 and § 12). Therefore, allowing recoupment will not affect property of the estate other than the subject claim. Furthermore, the invocation of the re-coupment doctrine promotes no preference problem. It is applied when there are countervailing claims arising from the same transaction “strictly for the purpose of abatement or reduction_” American Central, 60 B.R. at 590. (citing 4 Collier on Bankruptcy, § 553.03 (15th Edition 1984)). In effect, the application of recoupment goes to the equity of the claim. It" }, { "docid": "18547451", "title": "", "text": "to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable.’ ” Id. (quoting Lee v. Schweiker, 739 F.2d 870, 875 (3rd Cir.1984)). The doctrine of recoupment may be better understood by way of comparison with the doctrine of setoff. Setoff, codified in 11 U.S.C. § 553(a), gives a creditor the right “to offset a mutual debt owing by such creditor to the debtor” provided that both debts arose before commencement of the bankruptcy action and are in fact mutual. See id. The creditor’s mutual debt and claim generally arise from different transactions. 4 Collier on Bankruptcy. § 553.03, at 553-14 (Lawrence P. King et al. eds., 15th ed. 1996). “Recoupment, on the other hand, is the setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action_” Id. at 553-15. Recoupment allows the defendant, in a suit between the estate and another, “to show that because of matters arising out of the transaction sued on, he or she is not liable in full for the plaintiffs claim.” Id. at 553-17. Thus, re-coupment is an equitable doctrine that allows the determination of a “just and proper liability” regarding such a claim. Id. Recoupment is “narrowly construed” in bankruptcy eases because it violates the basic bankruptcy principle of equal distribution to creditors. See Ashland Petroleum Co. v. Appel (In re B & L Oil Co.), 782 F.2d 155, 158 (10th Cir.1986) (“A fundamental tenet of bankruptcy law is that a petition for bankruptcy operates as a ‘cleavage’ in time. Once a petition is filed, debts that arose before the petition may not be satisfied through post-petition transactions_ Any recoupment exception to this general principle perhaps should be narrowly construed.”). Therefore, for the purposes of recoupment, “same transaction” is a term of art that must be narrowly defined. See Davidovich, 901 F.2d at 1538 (“ ‘The fact that the same two parties are involved ... and that a similar subject matter gave rise to both claims ... does not mean that the" }, { "docid": "22028847", "title": "", "text": "(citation omitted). Recoupment, like setoff, has been applied in bankruptcy proceedings. See, e.g., In re B & L Oil Co., 782 F.2d at 157. However, there are distinctions between the two that are particularly important in bankruptcy. Id. Collier explains that the primary difference is that the limits placed on setoff under section 553 generally do not apply to recoupment claims. Collier states, for example, that “[t]he chief importance of the re-coupment doctrine in bankruptcy is that, unlike setoff, recoupment is often thought not to be subject to the automatic stay.” Collier ¶ 553.03, at 553-15—553-16 n. 5 (citations omitted). In addition, “[i]nvocation of re-coupment also relaxes the requirement of mutuality for setoff of debts as it relates to the pre or postpetition character of those debts.” Id. Collier offers the following rationale for this general rule: [I]n any suit or action between the estate and another, the defendant should be entitled to show that because of matters arising out of the transaction sued on, he or she is not liable in full for the plaintiffs claim. There is no element of preference here or of an independent claim to be set off, but merely an arrival at a just and proper liability on the main issue, and this would seem permissible without any reference to ... section 553(a). Collier ¶ 553.03, at 553-17 (citing Quittner, 202 F.2d at 816 n. 3). The Tenth Circuit has offered a similar rationale for treating setoff and recoupment differently in bankruptcy cases: In bankruptcy, both recoupment and setoff are sometimes invoked as exceptions to the rule that all unsecured creditors of a bankrupt stand on equal footing for satisfaction. Recoupment or setoff sometimes allows particular creditors preference over others. Setoff is allowed in only very narrow circumstances in bankruptcy. But a creditor properly invoking the recoupment doctrine can receive preferred treatment even though setoff would not be permitted. A stated justification for this is that when the creditor’s claim' arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a" }, { "docid": "1520858", "title": "", "text": "a creditor’s ability to set off certain claims. The doctrine of setoff, as incorporated in Bankruptcy Code section 553, gives a creditor the right “to offset a mutual debt owing by such creditor to the debtor,” provided that both debts arose before commencement of the bankruptcy action and are in fact mutual. In re Davidovich, 901 F.2d 1533, 1537 (10th Cir.1990). “Setoff, in effect, elevates an unsecured claim to secured status, to the extent that the debtor has a mutual, pre-petition claim against the creditor.” Lee v. Schweiker, 739 F.2d 870, 875 (3d Cir.1984). Generally, the mutual debt and claim are the product of different transactions. 4 COLLIER ON BANKRUPTCY § 553.03, at 553-14 (Lawrence P. King ed., 15th ed. 1992). Pursuant to the limitations imposed by Code section 553, a creditor’s pre-petition claims against the debtor cannot be set off against post-petition debts owed to the debtor. Id. The Bankruptcy Code does not contain a recoupment provision. The common law doctrine of recoupment provides an exception to setoff in bankruptcy cases. Recoupment “is the setting up of a demand arising from the same transaction as the plaintiff’s claim or cause of action, strictly for the purpose of abatement or reduction of such claim.” 4 COLLIER ON BANKRUPTCY § 553.03, at 553-15-17 (emphasis added). This doctrine is justified on the grounds that “where the creditor’s claim against the debtor arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable.’’ Lee, 739 F.2d at 875. Thus, so long as the creditor’s claim arises out of the identical transaction as the debtor’s, that claim may be offset against the debt owed to the debtor, without concern for the limitations put on the doctrine of setoff by Code section 553. Davidovich, 901 F.2d at 1537. In the bankruptcy context, recoupment has often been applied where the relevant claims arise out of a single contract “that provide[s] for advance payments based on estimates of what ultimately" }, { "docid": "1109998", "title": "", "text": "Withdraw the reference is GRANTED. IT IS SO ORDERED. . This decision does not address the requirements of section 157(b)(3) in relation to withdraw the reference on any grounds other than the movant’s right to a jury trial. . In a sense, because the Tenth Circuit has denied bankruptcy courts the authority to conduct jury trials, this form of \"permissive” withdrawal will always be mandatory if the movant satisfies the prerequisites of his or her right to a jury trial. . A \"recoupment\" is an offset based upon a claim for relief \"arising from the same transaction as the plaintiffs claim or cause of action, strictly for the purpose of abatement or reduction of such claim. See Lawrence P. King, 4 Collier on Bankruptcy ¶ 553.03, at 553-15 (15th ed. 1993). Unlike a setoff, a recoupment lacks \"the concept of mutuality of obligations and arises out of a single transaction between creditor and debtor.\" Sapir v. Blue Cross/Blue Shield (In re Yonkers Hamilton Sanitarium, Inc.), 34 B.R. 385, 386 (S.D.N.Y.1983). . A counterclaim is a broader concept than set-off or recoupment. See Lawrence P. King, 4 Collier on Bankruptcy ¶ 553.03, at 553-17 (15th ed. 1993). Under Federal Rule of Civil Procedure 13, a counterclaim may include a setoff, or recoupment, but it may also include independent claims which lack the characteristics of a setoff, such as mutuality of obligation. . The Trustee argues that a setoff should be treated only as a counterclaim, rather than an affirmative defense. . Other jurisdictions, however, continue to recognize separate pleading requirements for counterclaims, recoupments and setoffs. For example, some courts have determined that a setoff should be pleaded as an affirmative defense. See Durham v. SMI Indus. Corp., 882 F.2d 881, 883 (4th Cir.1989); Joseph V. Edsskuty & Assoc. v. Jacksonville Kraft Paper Co., 702 F.Supp. 741, 749 (D.Minn.1988). By contrast, other courts have concluded that a setoff is a counterclaim under Federal Rule of Civil Procedure 13. See Chapes, Ltd. v. Anderson (In re Scaife), 825 F.2d 357, 362 (11th Cir.1987); Middletown Plaza Assoc. v. Dora Dale of Middletown, Inc., 621" }, { "docid": "18754748", "title": "", "text": "the bankruptcy court made no specific finding of fact in that respect. ISSUE Whether recoupment between post-petition and pre-petition claims arising from the same transaction is precluded and, if not, whether the claims here arise out of the same transaction. DISCUSSION Recoupment originated as an equitable rule of joinder. Under recoupment, a defendant could meet a plaintiffs claim with a countervailing claim that arose “out of the same transaction.” See J. Moore, 3 Moore’s Federal Practice ¶ 13.02, at 13-13 n. 1 (2d ed. 1985); See also In re B & L Oil Company, 782 F.2d 155 (10th Cir.1986). Modem rules of pleading have diminished the importance of the common-law distinctions between recoupment and setoff. Id. However, in bankruptcy the distinctions are important. Setoff is allowed in only very narrow circumstances in bankruptcy. 4 Collier on Bankruptcy ¶ 553.03 (15th ed. 1981). But a creditor properly invoking the recoupment doctrine can receive preferred treatment even though setoff would not be permitted. Id. The court in Lee v. Schweiker, 739 F.2d 870 (3d Cir.1984) stated: The justification for the recoupment doctrine is that where the creditor’s claim arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable. Lee v. Schweiker, at 875. The Lee court distinguished the cases in which recoupment was allowed and emphasized that most recoupment cases involved single contracts that provided for advance payments based on estimates of what would ultimately be owed, subject to later correction. The analysis in those cases was based on the treatment of executory contracts in bankruptcy. When an exec-utory contract is involved, courts have reasoned that a debtor who assumes the favorable aspects of the contract (post-petition performance) also must take the unfavorable aspects of the same contract (obligation to repay pre-petition overpayments). Lee at 876. For example, when a recording company paid advance royalties to a musician, it was allowed to recoup the advances from post-bankruptcy record sales, rather than being required to" }, { "docid": "18547450", "title": "", "text": "under 11 U.S.C. § 553 was limited to $22,809.90, the total of the credit card invoices available as a credit against Peterson’s account with Cono-co before the bankruptcy filing. We address each issue in turn. A Recoupment 1. General Principles Although modern counterclaim doctrine has replaced common law recoupment in most areas of the law, recoupment remains a distinct doctrine in bankruptcy eases, Davidovich v. Welton (In re Davidovich), 901 F.2d 1533, 1537 (10th Cir.1990) (per curiam). Originally an equitable rule of joinder for claims arising out of a single transaction, recoupment allowed adjudication in one suit of two claims that otherwise had to be brought separately under the common law forms of action. Id. Davidovich described recoupment as follows: In the modem bankruptcy setting, this rule [of recoupment] has evolved to permit a creditor to offset a claim that ‘“arises from the same transaction as the debtor’s claim,’ ” without reliance on the setoff provisions and limitations of [11 U.S.C.] section 553, because the creditor’s claim in this circumstance is “ ‘essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable.’ ” Id. (quoting Lee v. Schweiker, 739 F.2d 870, 875 (3rd Cir.1984)). The doctrine of recoupment may be better understood by way of comparison with the doctrine of setoff. Setoff, codified in 11 U.S.C. § 553(a), gives a creditor the right “to offset a mutual debt owing by such creditor to the debtor” provided that both debts arose before commencement of the bankruptcy action and are in fact mutual. See id. The creditor’s mutual debt and claim generally arise from different transactions. 4 Collier on Bankruptcy. § 553.03, at 553-14 (Lawrence P. King et al. eds., 15th ed. 1996). “Recoupment, on the other hand, is the setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action_” Id. at 553-15. Recoupment allows the defendant, in a suit between the estate and another, “to show that because of matters arising out of the transaction sued" }, { "docid": "13976256", "title": "", "text": "to a secured position to the extent that debtor has a mutual, pre-petition claim against creditor thereby receiving a permissible preference over other creditors. (See 11 U.S.C. § 506(a)). The actual setoff may be made either prior to or after the filing of the bankruptcy petition. However, setoff under § 553 after the bankruptcy case has begun requires obtaining relief from the automatic stay under § 362(a)(7) of the Code. The requirement of mutuality is of particular significance after the filing of a petition in bankruptcy. Because of the distinction between debtor and debtor-in-possession under the Bankruptcy Code, the majority of courts have concluded that the requisite element of mutuality of parties is lacking whenever a creditor attempts to offset a pre-petition debt against a post-petition claim. The doctrine of recoupment differs from setoff mainly in that the claim must grow out of the identical transaction that furnishes plaintiff’s cause of action and, being in the nature of a claim of right to reduce the amount demanded, can be had only to an extent sufficient to satisfy plaintiff’s claim. In other words, recoupment goes to the justice of plaintiff’s claim and no affirmative judgment for any excess over the claim of plaintiff can be awarded thereon. (See 20 Am.Jur.2d, Counterclaim, Recoupment & Setoff, § 11 and § 12). Recoupment originated as an equitable rule of joinder. It allowed adjudication in one suit of two claims that otherwise had to be brought separately under the common law forms of action. Under recoupment, defendant could meet a plaintiff’s claim with the countervailing claim that arose “out of the same transaction.” (See J. Moore, 3 Moores Federal Practice, Page 13.02, at 1313 N. 1 (2nd Ed.1985); 20 Am. Jur.2d, Counterclaim, Recoupment & Set-off, § 16—§ 18 (1965). As further explained in 4 Collier on . Bankruptcy, 11553.03 (15th Ed.1984), re-coupment is not subject to the limitations on setoff in § 553 of the Bankruptcy Code; recoupment ... is the setting up of a demand arising from the same transaction as plaintiff’s claim or cause of action strictly for the purpose of abatement or" }, { "docid": "10228339", "title": "", "text": "Co.), 362 F.2d 486, 491 (4th Cir.1966); Guinee v. Board of Supervisors (In re James R. Corbitt Co.), 62 B.R. 1017, 1022 (Bankr.E.D.Va.1986). “[T]he rights [and] claims ... to which [the surety] succeeds are taken subject to the limitations, burdens, and disqualifications incident to them in the hands of the party to whom he is subrogated ...” 73 Am Jur.2d, Subrogation, § 106 (1974). If the landlord had an indebtedness to the estate which the Trustee were seeking to recover, pursuant to section 553(a)(1) the maximum amount of the setoff to which the landlord would be entitled would be its allowed claim, that is, its damages as limited by section 502(b)(6). Outlet, since it is subrogated to the claims of the landlords, can be entitled to no greater setoff. In other words, the guarantor’s setoff is limited to the lesser amount of his payment or the creditor’s allowed claim. C. Recoupment Recoupment is a common law doctrine which arose as an equitable rule of joinder to avoid the necessity of bringing separate actions for two claims. It permits a defendant to defend against the plaintiff by asserting a countervailing claim that arose out of the “same transaction.” See 3 J. Moore, Moore’s Federal Practice ¶ 13.02 at 1313 (2 ed. 1985); 20 Am.Jur.2d, Counterclaim, Recoupment & Setoff, §§ 16-18 (1965). Instead of relating to mutual obligations arising from different transactions, recoupment is essentially a defense to the debtor’s claim against the creditor. In re Monongahela Rye Liquors, 141 F.2d 864, 869 (3d Cir.1944). The doctrine has been employed in bankruptcy cases. See id.; In re Yonkers Hamilton Sanitarium Inc., 22 B.R. 427 (Bankr.S.D.N.Y.1982), aff'd, 34 B.R. 385 (S.D.N.Y.1983). The major consideration is whether the claims arise from the same transaction. Outlet contends that it may invoke the doctrine of recoupment as an affirmative defense to the eighth cause of action, explaining that “the Note, executed in reduction of the purchase price of the overall transaction, and the payment by [it] stemming from breaches of the Colonie Lease obligations starting immediately on the date of the transfer, constitute elements of the" }, { "docid": "1109986", "title": "", "text": "that state law governs the substance of the setoff claim under Bankruptcy Code section 553. See Durham v. SMI Indus. Corp., 882 F.2d 881, 883 (4th Cir.1989); Express Freight Lines, Inc. v. Kelly (In re Express Freight Lines, Inc.), 130 B.R. 288, 290 (Bankr.E.D.Wis.1991); Williams v. American Bank of Mid-Cities (In re Williams), 61 B.R. 567, 571 (Bankr.N.D.Tex.1986). This court, therefore, must look to Utah law to ascertain the nature of a setoff claim. In Utah, the substantive distinctions between recoupment and setoff articulated at common law remain in place. Mark VII Fin. Consultants v. Smedley, 792 P.2d 130, 133 (Utah Ct.App.1990) (cit ing First Sec. Bank v. Utah Turkey Growers, Inc., 610 P.2d 329, 333 (Utah 1980)). At common law, a setoff, as distinguished from a recoupment or counterclaim , arose from different transactions, or occurrences, between the same parties. See Lawrence P. King, 4 Collier on Bankruptcy ¶ 553.03, at 553-14 (15th ed. 1993). It was often asserted to reduce or extinguish the creditor’s claim against the debtor. Id. It was also used, however, to recover a judgment if the amount sought to be setoff exceeded the original claim. Id. at 553-15. In other words, a setoff provided the basis for affirmative relief. Id. As a procedural matter, a setoff claim provided the claimant with an independent cause of action which was offset against a separate existing claim in a single action for the purpose of judicial economy. The procedural differences, however, between counterclaim, recoupment and setoff have been significantly relaxed under the modern rules of civil procedure. Mark VII Fin. Consultants, 792 P.2d at 133; see also In re B & L Oil Co., 782 F.2d at 157 (reaching similar conclusion under Federal Rules of Civil Procedure). Specifically, “a defendant may [choose to] ... use ... set-off defensively, rather than as the basis of a counterclaim seeking affirmative relief, and it may properly. do so.” Mark VII Fin. Consultants, 792 P.2d at 133 n. 2 (citing 2A James Wm. Moore, Moore’s Federal Practice ¶ 8.27[3], at 8-177 (2d ed. 1993)). In short, a setoff may be properly" }, { "docid": "1081322", "title": "", "text": "the initial hearings. Although the elemental differences in the doctrines are evident when a creditor attempts to establish a setoff or recoupment, they are blurred when a debtor invokes § 558, particularly in circumstances such as presented in this case. We note at the outset that § 553 of the Bankruptcy Code prescribes setoff but applies only to creditors. Recoupment is not mentioned in the Code but is utilized in bankruptcy by decision. Lee v. Schweiker, 739 F.2d 870, 875 (3d Cir.1984). Debtor’s claim to setoff or recoupment, therefore, must be based on the implicit incorporation of the doctrines into § 558, or by way of preservation of the Debtor’s defenses by contract, or by some common law entitlement. Thus, we examine only this defensive action by Debtor, invoking § 558, to determine whether the postpetition rent may be reduced by amounts owed to Debt- or, prepetition, by Lessor. Section 558 preserves to the Debtor its prepetition defenses to causes of action. In that context, either setoff or recoupment would be available as a defense and, if established, would result in a netting out of what each party owes the other. To establish setoff, the movant must show that there are mutual prepetition debts and that the result of the offsets will not improve the position of the creditor. The essential element of recoupment is that the debts must arise out of the same transaction. Setoff is a narrower, more restrictively applied doctrine than is recoupment. See University Medical Center v. Sullivan, 122 B.R. 919 (E.D.Pa.1990); In re California Canners & Growers, 62 B.R. 18 (9th Cir. BAP 1986); In re Vaughter, 109 B.R. 229 (Bankr.W.D.Tex.1989). The issues which typically arise with respect to setoff include how to determine what constitutes a prepetition obligation, how to define what is a mutual debt, and how to determine whether an improvement in position would result. With respect to recoupment, the issues tend to be focused on what constitutes the “same transaction.” Concerning setoff as applied in this case, the parties have substantiated the mutuality of the debts and the court finds that" }, { "docid": "22028873", "title": "", "text": "it could not be interpreted in a manner which would allow Fireman’s Fund to assert the recoupment and setoff defenses. They argue that any such interpretation is inconsistent with their original intent in drafting the contract. . \"Except as otherwise provided ... this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case....” 11 U.S.C. § 553(a). . Because the contracts in this case were executed in Arizona, the \"applicable nonbankruptcy law\" in this case is Arizona law. Arizona's definition of recoupment and setoff appears to parallel Collier's: Although related concepts, set offs and counterclaims are distinguishable from recoupment. A set off or counterclaim is a demand which the defendant has against the plaintiff arising out of a transaction extrinsic to the plaintiff’s cause of action, whereas a recoupment is a reduction by the defendant of part of the plaintiff’s claim because of a right in the defendant arising out of the same transaction. Morris v. Achen Constr. Co., Inc., 155 Ariz. 507, 747 P.2d 1206, 1209 (App.1986) (citation omitted), rev'd in part on other grounds, 155 Ariz. 512, 747 P.2d 1211 (1987). . A “claim” includes a \"right to payment,” and a “debt” is a \"liability on a claim.\" 11 U.S.C. § 101. \"In the setoff context ... 'claim' and 'debt' are ... correlative terms.\" Collier ¶ 553.04[1], at 553-19 n. 1 (citation omitted). . For similar reasons, we reject the appellants’ related arguments that the mutuality requirements applicable in setoff cases should also apply in recoupment, and that Fireman’s Fund's re-coupment defense should fail because Fireman's Fund allegedly violated the automatic stay. As noted above, the requirements of section 553 simply do not apply in recoupment cases. See Quittner, 202 F.2d at 816 n. 3 (\"Where the matter is one of recoupment or defense, a defendant need not rely upon [the setoff statute], because he would merely be proving that he" }, { "docid": "22028849", "title": "", "text": "mutual obligation, and application of the limitations on setoff in bankruptcy would be inequitable. In re B & L Oil Co., 782 F.2d at 157 (internal quotation marks and citations omitted) (cited in Collier ¶ 553.03, at 553-15—553-16 n. 5); see also Lee v. Schweiker, 739 F.2d 870, 875 (3rd Cir.1984); In re Harmon, 188 B.R. 421, 425 (9th Cir. BAP 1995) (“[T]he invocation of the recoupment doctrine promotes no preference problem. It is applied when there are countervailing claims arising from the same transaction ‘strictly for the purpose of abatement or reduction ....’”) (internal quotation marks and citation omitted); Photo Mechanical Services, Inc. v. E.I. DuPont De Nemours & Co., Inc. (In re Photo Mechanical Services, Inc.), 179 B.R. 604, 612 (Bankr.D.Minn.1995). It is true, as Newbery points out, that the rationales offered in the above authorities conflict with our holding in Quittner. In Quittner, we refused to allow a defendant to recoup prepayments made by that defendant to the plaintiff-debtor, finding that application of recoupment in the bankruptcy context “would interfere with the ratable distribution of assets among the general creditors.” Quittner, 202 F.2d at 816; see also In re California Canners and Growers, 62 B.R. at 22-23 (Elliott, Bankruptcy J., concurring) (discussing Quittner). However, in a recent case, the Supreme Court adopted a view which is consistent with the above authorities and' inconsistent with Quittner. In Reiter v. Cooper, 507 U.S. 258, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993), the Court stated that [i]t is well settled, moreover, that a bankruptcy defendant can meet a plaintiff-debt- or’s claim with a counterclaim arising out of the same transaction, at least to the extent that the defendant merely seeks recoupment. Recoupment permits a determination of the just and proper liability on the main issue, and involves no element of preference. Id. at 265 n. 2, 113 S.Ct. at 1218 n. 2 (citing In re B & L Oil Co. and Lee and quoting Collier) (internal quotation marks omitted). To the extent that Quittner stands for a contrary rule, it has been overruled. Accordingly, we reject both New-bery’s and Citibank’s" }, { "docid": "1109985", "title": "", "text": "sought to offset amounts awarded to him during arbitration against the debtor. Id. Addressing the term “setoff,” the court stated that “[t]he common law doctrine of setoff, as recognized in section 553 of the Bankrupt cy Code, grants a creditor the right ‘to offset a mutual debt owing by such creditor to the debtor' so long as both debts arose before the commencement of the bankruptcy action and are indeed mutual.” Id. at 1537 (citations omitted). The court added that the mutuality element requires that the debts occur between the- same parties standing in the same capacity. Id. Further, each debt must be valid and enforceable. Id. Importantly, however, the mutual debt need not arise from the same transaction for the doctrine of setoff to apply. Id. The court permitted the former partner to setoff those amounts awarded to him through the arbitration procedures. Id.; see also Tradex, Inc. v. United States (In re IML Freight, Inc.), 65 B.R. 788, 793 (Bankr.D.Utah 1986) (setting forth elements for setoff claim). It is important to note, however, that state law governs the substance of the setoff claim under Bankruptcy Code section 553. See Durham v. SMI Indus. Corp., 882 F.2d 881, 883 (4th Cir.1989); Express Freight Lines, Inc. v. Kelly (In re Express Freight Lines, Inc.), 130 B.R. 288, 290 (Bankr.E.D.Wis.1991); Williams v. American Bank of Mid-Cities (In re Williams), 61 B.R. 567, 571 (Bankr.N.D.Tex.1986). This court, therefore, must look to Utah law to ascertain the nature of a setoff claim. In Utah, the substantive distinctions between recoupment and setoff articulated at common law remain in place. Mark VII Fin. Consultants v. Smedley, 792 P.2d 130, 133 (Utah Ct.App.1990) (cit ing First Sec. Bank v. Utah Turkey Growers, Inc., 610 P.2d 329, 333 (Utah 1980)). At common law, a setoff, as distinguished from a recoupment or counterclaim , arose from different transactions, or occurrences, between the same parties. See Lawrence P. King, 4 Collier on Bankruptcy ¶ 553.03, at 553-14 (15th ed. 1993). It was often asserted to reduce or extinguish the creditor’s claim against the debtor. Id. It was also used," } ]

[ { "docid": "6158132", "title": "", "text": "disadvantages an individual or identifiable members of a group.” Nixon v. Administrator of Gen'l Servs., 433 U.S. 425, 471 n. 33, 97 S.Ct. 2777, 2804 n. 33, 53 L.Ed.2d 867 (1977). We conclude that section 402(b) does not violate the equal protection component of the Fifth Amendment. 3 The workers’ amici contend that section 402(b) is an unlawful bill of attainder under Article I, section 9, clause 3 of the Constitution. A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of Gen'l Servs., 433 U.S. at 468, 97 S.Ct. at 2803. A given statute must satisfy three requirements to meet this definition: “specification of the affected persons, punishment, and lack of judicial trial.” Selective Serv. Sys. v. Minnesota Pub. Int. Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 3352, 182 L.Ed.2d 632 (1984). Section 402(b) falls short of the recognized threshold. It is clear that section 402(b) meets the specificity requirement. A statute need not identify individuals by name to incur suspicion. A law that defines a class of persons on the basis of “irreversible acts committed by them” is adequately specific. Id. at 847-48, 104 S.Ct. at 3352-53 (discussing Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1867) and Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867)). The statute in this case defines a class composed solely of these plaintiffs on the basis of their having brought this action against the canneries. Specificity alone, however, is not enough to implicate the attainder clause. This court recently cautioned that “[a]n otherwise valid law is not transformed into a bill of attainder merely because it regulates conduct on the part of designated individuals or classes of individuals.” Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723, 727 (9th Cir.1992). If an otherwise valid law were so transformed, the ban on bills of attainder would be difficult to distinguish from the guarantee of equal protection. See id. Therefore, the" } ]

[ { "docid": "23155550", "title": "", "text": "another psychiatrist to prepare his défense. Langford’s first attorney, MacKay, testified in person. He stated that he did not recall ever seeing the first Miranda waiver form, and that Langford had told him that he knew of his rights. He stated that, whenever he discussed possible strategy options or further investigation, Langford stated that he knew what he was going to do and wanted MacKay to make sure no one interfered with his decision. The state trial court denied Langford’s motion to withdraw the guilty pleas, finding that Langford would not have entered different pleas even if MacKay had advised him in the manner that new counsel asserted he should have, and that Langford therefore suffered no prejudice as a result of any alleged ineffectiveness of MacKay’s assistance. The state trial court found that Langford pleaded guilty because he preferred the death penalty to spending a long time in prison. The Montana Supreme Court affirmed the convictions and sentences. State v. Langford [Langford I], 248 Mont. 420, 813 P.2d 936 (1991). The court rejected the claim that MacKay had been ineffective. It pointed out that there was no evidence that Langford told MacKay that he initially had refused to waive his rights,’ and that MacKay otherwise had explored suppression of the confession and attacks on the constitutionality of the Montana death penalty. Id. 813 P.2d at 947. Langford had never placed his sanity in issue, so there was no need to seek appointment of a defense psychiatrist pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The court stated that it was important to note that, at the time that MacKay was rendering his assistance as counsel, Langford was insisting on pleading guilty and seeking the death penalty. Langford I, 813 P.2d at 947. The Montana Supreme Court also rejected Langford’s argument that the state trial court failed properly to consider mitigating factors contained in the presentence report and state hospital report. Id. at 949-50. The supreme court agreed with the trial court’s suggestion that the only potentially mitigating circumstance was the lack of" }, { "docid": "23155583", "title": "", "text": "cause and prejudice for his procedural default. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991). 3. The Constitutionality of Hanging as a Method of Execution Finally, Langford argues that execution by hanging is cruel and unusual punishment in violation of the Eighth Amendment. His argument is categorical; he does not challenge the particular method or protocol of hanging employed by Montana. His motion to certify the qualifications of the hangman was granted, and he does not challenge the certification on appeal. He contends that hanging per se violates the Eighth Amendment. Langford recognizes that his argument was rejected by this court in Campbell v. Wood, 18 F.3d 662 (9th Cir.1994) (en banc). He argues, however, that we should reconsider Campbell in light of the fact that South Africa, which previously executed by hanging, has recently held the death penalty unconstitutional. See State v. Makwanyane, No. CCT/3/94, slip op. (Rep. of South Africa, June 6, 1995). Langford contends that this development indicates that hanging must now be considered cruel and unusual punishment under the “evolving standards of decency” that continue to lend meaning to the Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 103, 78 S.Ct. 590, 599, 2 L.Ed.2d 630 (1958) (plurality opinion). This panel is not free, however, to overturn the en banc decision of this court in Campbell. Nor do we find the decision of the Supreme Court of South Africa in Makwan-yane to be of much assistance to Langford. That decision did not focus on hanging, but held the death penalty itself to be unconstitutional — a position that is not the law of this land. Accordingly, we reject Langford’s Eighth Amendment argument. III. CONCLUSION The district court’s denial of Langford’s petition for habeas corpus and grant of summary judgment for respondents is AFFIRMED. . In an affidavit in support of his motion to withdraw his guilty plea, Langford stated that he thought he used the word “lawyer\" at some point in refusing to waive his rights, but that he wasn't “exactly sure” that he did. . After" }, { "docid": "23155581", "title": "", "text": "as a device for disregarding the one existing enumerated factor entirely if it failed to reach a certain level of magnitude. We find no Smith error here. We also cannot fault the state trial court or Montana Supreme Court for not considering the mitigating evidence cumulatively. The only enumerated factor found in any degree at all was the absence of an extensive criminal record. Because we conclude that the state courts were not required to search the record for less-than-substantial unenumerat-ed factors not offered or referred to by Langford or his counsel, there were no other factors to cumulate. We therefore reject Langford’s challenge to the Montana courts’ evaluation of mitigating factors. 2. The Constitutionality of the Montana Death Penalty Statutes Langford argues that the Montana Supreme Court denied him due process and equal protection under the United States Constitution because that court failed to declare the Montana death penalty statutes unconstitutional as a matter of state law. In Langford I, 818 P.2d at 952, and Langford II, 819 P.2d at 151, the Montana Supreme Court held that the Montana death penalty statutes did not violate the state constitution. That ruling raises no federal issue for our consideration. See Melugin, 38 F.3d at 1482; Middleton, 768 F.2d at 1085. Langford attempts, however, to federalize his claim by arguing that the Montana Supreme Court violated his rights to due process and equal protection by denying him the benefit of a previous state decision, State ex rel. Cashmore v. Anderson, 160 Mont. 175, 500 P.2d 921, 930 (1972) (finding that majority of electors voting at election approved Montana Constitution), cert. denied, 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593 (1973). Langford raised those federal claims only in his second postconviction petition. The Montana Supreme Court held that the claims were defaulted, because he had failed to raise them by petition for rehearing after the decision in Langford I. We conclude that these claims are procedurally barred because Langford failed to assert them in timely fashion in the state courts. We cannot review the claims because Langford does not allege or show" }, { "docid": "23155584", "title": "", "text": "cruel and unusual punishment under the “evolving standards of decency” that continue to lend meaning to the Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 103, 78 S.Ct. 590, 599, 2 L.Ed.2d 630 (1958) (plurality opinion). This panel is not free, however, to overturn the en banc decision of this court in Campbell. Nor do we find the decision of the Supreme Court of South Africa in Makwan-yane to be of much assistance to Langford. That decision did not focus on hanging, but held the death penalty itself to be unconstitutional — a position that is not the law of this land. Accordingly, we reject Langford’s Eighth Amendment argument. III. CONCLUSION The district court’s denial of Langford’s petition for habeas corpus and grant of summary judgment for respondents is AFFIRMED. . In an affidavit in support of his motion to withdraw his guilty plea, Langford stated that he thought he used the word “lawyer\" at some point in refusing to waive his rights, but that he wasn't “exactly sure” that he did. . After this appeal had been briefed, argued and submitted for decision, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996. We assume for purposes of decision that the Act's requirement of a certificate of appealability does not apply retroactively to Langford's case, and that the district court’s certificate of probable cause is sufficient to permit him to maintain his appeal. See Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996) (assuming without deciding that requirement of certificate of appealability did not apply to pending request for certificate of probable cause, and granting certificate of probable cause). We need not decide whether the Act’s stricter review provisions of section 2254 apply, because we conclude that Langford cannot succeed under the more lenient pre-Act standards. -The separate death penalty provisions of Chapter 154 of the Act, which are expressly made applicable to pending appeals, do not apply by their own terms because Montana has not established of record its qualification under the Act’s section 2261. . For reasons stated in note 3, supra, we apply section" }, { "docid": "16072518", "title": "", "text": "525 U.S. 1173, 119 S.Ct. 1107, 143 L.Ed.2d 106, cert. dismissed, — U.S. -, 119 S.Ct. 1450, 143 L.Ed.2d 538 (1999); Rupe v. Wood, 863 F.Supp. 1315 (W.D.Wash.1994) (finding that, although death by hanging is not generally unconstitutional, where there is significant risk of decapitation in hanging of obese death row inmate, hanging violates Eighth Amendment), aff'd, 93 F.3d 1434 (9th Cir.1996) (issue moot because of change in Washington capital statute), cert. denied, 519 U.S. 1142, 117 S.Ct. 1017, 136 L.Ed.2d 894 (1997). Plaintiffs right to meaningful access to the courts to assert that right requires that counsel have some access to the prisoner during the last hour before the execution and be permitted to witness his execution and have access to a telephone until execution has been successfully carried out. Plaintiff Coe has met the injunction standard on this claim. This court finds that Plaintiffs right to access the courts to raise an Eighth Amendment claim of cruel and unusual punishment is decidedly not frivolous, and his interest in being free from cruel and unusual punishment is paramount. Plaintiff will be irreparably harmed if he is denied relief. The state certainly has no legitimate interest in depriving the Plaintiff of access to the courts to assert a claim of cruel and unusual treatment. Finally, the public interest is best served by insuring that executions are carried out in a constitutional manner. This court is skeptical about a prisoner’s realistic ability to assert and get redress for a violation of his right to be free from cruel and unusual punishment during the execution itself. However, given society’s (and the state’s) interest in assuring that capital punishment is carried out in a humane manner and the minimal inconvenience to the state, this court finds the plaintiffs position well taken. This court holds that the plaintiff has the right under the First, Eighth and Fourteenth Amendments to have some access to his counsel during the last hour before the execution and to have his counsel witness the execution, from either the witness room or a room with closed circuit live television transmission." }, { "docid": "22276260", "title": "", "text": "in this context, and § 2253 must apply to one final order: the district court’s final judgment on the habeas petition. B. I respectfully decline to join in the majority’s reliance on the decisions of our sister circuits for the proposition that the COA requirement of § 2253 extends to appeals of the denial of Rule 60(b) relief. By and large, the courts, in reaching these decisions, simply assumed that § 2253 applies in the Rule 60(b) context. Moreover, most of these cases involve obvious misuses of the Rule and are therefore inappo-site to circumstances involving true Rule 60(b) motions. See Rutledge v. United States, 230 F.3d 1041, 1052-53 (7th Cir.2000) (considering an appeal from the denial of a Rule 60(b) motion based on an ineffective assistance of counsel claim that the petitioner “should have raised ... in his § 2255 motion”); Morris v. Horn, 187 F.3d 333, 343 (3d Cir.1999) (“What [the habeas petitioner] is attempting to raise as a Rule 60(b) motion is in fact what he should have brought as an appeal” from the district court’s dismissal of his habeas petition for failure to exhaust state remedies.); Zeitvogel v. Bowersox, 103 F.3d 56, 57 (8th Cir.1996) (refusing to grant a COA to review the denial of the petitioner’s purported Rule 60(b) motion because the motion merely presented a constitutional claim, ineffective assistance of counsel, that the petitioner had previously raised in a motion for leave to file an SSHP). I suggest that a fair reading of the opinions in these cases indicates that none of the motions at issue was a true Rule 60(b) motion. Langford v. Day, 134 F.3d 1381, 1382 (9th Cir.1998), also relied on by the majority, remains as a possible outlier. In that case, the petitioner, Langford, was convicted of capital murder by a Montana court and sentenced to death. At the time sentence was imposed, Montana law prescribed hanging or lethal injection as the means of execution. The trial court allowed the petitioner to choose the means of execution, and he chose hanging. In challenging his sentence on direct appeal and on" }, { "docid": "23155541", "title": "", "text": "OPINION CANBY, Circuit Judge: Terry Allen Langford, a Montana death-row inmate, appeals the denial of his habeas corpus petition under 28 U.S.C. § 2254 and the grant of summary judgment for respondents. Langford confessed to two murders, pleaded guilty, did not present mitigating evidence at the sentencing hearing, and asked for the death penalty. Soon after being sentenced to death, however, Langford obtained new counsel and moved to withdraw his guilty pleas. The Montana state courts denied his motion to withdraw his pleas and upheld his convictions and sentences. On appeal, Langford argues that he received ineffective assistance of counsel from his first attorney, who counseled him through the guilty plea and sentencing phases of this case. He also argues that the Montana Supreme Court failed to consider and give effect to mitigating evidence at sentencing, that the Montana death penalty statutes are unconstitutional because of the manner in which they were enacted, and that death by hanging is a cruel and unusual method of execution. We have jurisdiction over Langford’s claims under 28 U.S.C. § 2253. We affirm. I. BACKGROUND In July 1988, Montana authorities found the bodies of Edward and Celene Blackwood in their residence. The Blackwoods had been bound and shot, and Mrs. Blackwood’s throat had been slashed. Certain items were missing from their house, including several guns with known serial numbers, and the Blackwood’s pickup truck was also gone. The police entered the serial numbers of the guns into the National Crime Information Computer (“NCIC”). The truck was found a few days later about sixty miles away, and the police lifted latent fingerprints from inside its cab. Later that month, Indiana authorities notified the Montana authorities that they had found a bag, containing the Blackwoods’ guns, that was believed to have been abandoned by a fleeing suspect after an attempted robbery of a motel. The robbery suspect had registered at the motel as Terry Allen Langford and listed his residence as Raleigh, North Carolina. One of the guns in this bag later was determined to be the murder weapon. Langford was listed in the NCIC as" }, { "docid": "23155555", "title": "", "text": "of Langford’s claims of ineffective assistance, primarily because “Langford would have pleaded guilty no matter what his counsel did.” The dis trict court found no constitutional error in the state courts’ treatment of mitigating factors in sentencing. It also found no error in the rulings that Langford had defaulted on his due process and equal protection claims, or that hanging did not violate the Eighth Amendment. II. ANALYSIS We review de novo the district court’s decision to deny Langford’s writ of habeas corpus. Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995); Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir.1986). On this appeal, Langford challenges both the state courts’ denial of his motion to withdraw his guilty plea and his sentence. A. The Guilty Plea Langford’s challenge to his guilty plea is based on his claim of ineffective assistance of counsel. We review that issue de novo. Moran v. Godinez, 57 F.3d 690, 699 (9th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995); see also Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). Langford received ineffective assistance of counsel if his counsel’s performance fell below an objective standard of reasonableness, and there was a reasonable probability that, but for counsel’s errors, Langford would not have pleaded guilty and instead would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Langford contends that his claim meets both requirements. He also asserts that the district court improperly accorded a presumption of correctness to several state court findings of fact. We address the two arguments in order. 1. Ineffective Assistance of Counsel The fact that overshadows this case is that Langford strongly and repeatedly insisted on pleading guilty and seeking the death penalty. That fact does not does not mean that Langford loses his right to effective assistance of counsel; his plea must be not only voluntary but intelligent, see, e.g., Boykin v. Alabama, 395 U.S. 238, 242, 89" }, { "docid": "23155582", "title": "", "text": "Court held that the Montana death penalty statutes did not violate the state constitution. That ruling raises no federal issue for our consideration. See Melugin, 38 F.3d at 1482; Middleton, 768 F.2d at 1085. Langford attempts, however, to federalize his claim by arguing that the Montana Supreme Court violated his rights to due process and equal protection by denying him the benefit of a previous state decision, State ex rel. Cashmore v. Anderson, 160 Mont. 175, 500 P.2d 921, 930 (1972) (finding that majority of electors voting at election approved Montana Constitution), cert. denied, 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593 (1973). Langford raised those federal claims only in his second postconviction petition. The Montana Supreme Court held that the claims were defaulted, because he had failed to raise them by petition for rehearing after the decision in Langford I. We conclude that these claims are procedurally barred because Langford failed to assert them in timely fashion in the state courts. We cannot review the claims because Langford does not allege or show cause and prejudice for his procedural default. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991). 3. The Constitutionality of Hanging as a Method of Execution Finally, Langford argues that execution by hanging is cruel and unusual punishment in violation of the Eighth Amendment. His argument is categorical; he does not challenge the particular method or protocol of hanging employed by Montana. His motion to certify the qualifications of the hangman was granted, and he does not challenge the certification on appeal. He contends that hanging per se violates the Eighth Amendment. Langford recognizes that his argument was rejected by this court in Campbell v. Wood, 18 F.3d 662 (9th Cir.1994) (en banc). He argues, however, that we should reconsider Campbell in light of the fact that South Africa, which previously executed by hanging, has recently held the death penalty unconstitutional. See State v. Makwanyane, No. CCT/3/94, slip op. (Rep. of South Africa, June 6, 1995). Langford contends that this development indicates that hanging must now be considered" }, { "docid": "22276261", "title": "", "text": "from the district court’s dismissal of his habeas petition for failure to exhaust state remedies.); Zeitvogel v. Bowersox, 103 F.3d 56, 57 (8th Cir.1996) (refusing to grant a COA to review the denial of the petitioner’s purported Rule 60(b) motion because the motion merely presented a constitutional claim, ineffective assistance of counsel, that the petitioner had previously raised in a motion for leave to file an SSHP). I suggest that a fair reading of the opinions in these cases indicates that none of the motions at issue was a true Rule 60(b) motion. Langford v. Day, 134 F.3d 1381, 1382 (9th Cir.1998), also relied on by the majority, remains as a possible outlier. In that case, the petitioner, Langford, was convicted of capital murder by a Montana court and sentenced to death. At the time sentence was imposed, Montana law prescribed hanging or lethal injection as the means of execution. The trial court allowed the petitioner to choose the means of execution, and he chose hanging. In challenging his sentence on direct appeal and on federal habeas corpus, the petitioner unsuccessfully claimed that hanging violated the Eighth Amendment. Prior to the date set for his execution, “the Montana legislature abolished hanging, leaving only lethal injection as a means of execution.” Id. at 1382. The petitioner thereafter filed a Rule 60(b) motion in the district court, alleging that this change in Montana law authorized the court to revisit its judgment denying his petition for habeas corpus relief. The court denied his motion, and the petitioner filed a notice of appeal. The court of appeals interpreted its pre-AEDPA precedent, Lynch v. Blodgett, 999 F.2d 401, 402-03 (9th Cir.1993), to preclude it from entertaining a petitioner’s appeal absent a certificate of probable cause (the COA’s pre-AEDPA analog). In the court’s view, AEDPA required a COA in all circumstances in which a certifícate of probable cause was previously required. Because the petitioner could obtain neither a COA nor a certificate of probable cause, the court did not decide whether AEDPA or pre-AEDPA law applied. In other words, the denial of a meritorious constitutional claim" }, { "docid": "23155554", "title": "", "text": "trial court denied the motion as moot because Langford had chosen hanging rather than the other available alternative method of lethal injection. State v. Langford (Langford III), 254 Mont.44, 833 P.2d 1127, 1127-28 (1992). The Montana Supreme Court affirmed the trial court’s order on appeal for the same reason. Id. 833 P.2d at 1129. In December 1991, Langford filed his petition for writ of habeas corpus in the federal district court. The district court conducted a limited evidentiary hearing to determine whether MacKay had provided ineffective assistance by failing to advise Langford that he had a right to remain silent at the psychiatric evaluation. The district court held that Mac-Kay’s failure to advise could have caused no prejudice because Langford was properly advised by the hospital staff. The district court held that the state courts had held a full and fair evidentiary hearing with regard to all other allegations of ineffective assistance. The district court granted respondents’ motion for summary judgment and denied Langford’s petition for writ of habeas corpus. The district court rejected all of Langford’s claims of ineffective assistance, primarily because “Langford would have pleaded guilty no matter what his counsel did.” The dis trict court found no constitutional error in the state courts’ treatment of mitigating factors in sentencing. It also found no error in the rulings that Langford had defaulted on his due process and equal protection claims, or that hanging did not violate the Eighth Amendment. II. ANALYSIS We review de novo the district court’s decision to deny Langford’s writ of habeas corpus. Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995); Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir.1986). On this appeal, Langford challenges both the state courts’ denial of his motion to withdraw his guilty plea and his sentence. A. The Guilty Plea Langford’s challenge to his guilty plea is based on his claim of ineffective assistance of counsel. We review that issue de novo. Moran v. Godinez, 57 F.3d 690, 699 (9th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995); see also Strickland v. Washington, 466" }, { "docid": "23155562", "title": "", "text": "Ake, he possibly could have demanded and obtained an independent psychiatrist to aid in his defense. Langford has not shown, however, that his sanity was likely to be an issue in his case. See Ake, 470 U.S. at 83, 105 S.Ct. at 1096. The state hospital found that Langford was not suffering from any mental illness. The record furnishes no reason to believe that further psychiatric evaluation would have created an issue regarding Langford’s mental compe tence. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Campbell v. Wood, 18 F.3d 662, 673 (9th Cir.), cert. granted, 511 U.S. 1119, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994). MacKay’s decision not to explore further the question of Langford’s competence fell within that range. Above all, moreover, stands the second Hill requirement-prejudice. Langford had to “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370. Langford utterly fails to meet this requirement. Indeed, the record strongly supports the determination of the state courts and the district court that, even if Langford had been advised as his present counsel now urges, and even if he had been offered a defense psychiatrist, he would have pleaded guilty anyway. Once it was clear that MacKay could not guarantee that Langford would not spend a long time in prison, Langford was determined and unequivocal in his decision to plead guilty and seek the death penalty. Unlike decisions about trial strategies, the decision to plead guilty was Langford’s to make, and Montana’s Rules of Professional Conduct bound MacKay to that decision. See Montana Rules of Professional Conduct, 1.2(a) (“[T]he lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered____”). We conclude, therefore, that Langford was not denied effective assistance of counsel in his plea proceeding. The state trial court consequently did not violate Langford’s constitutional rights in refusing to permit him to withdraw the plea." }, { "docid": "23155552", "title": "", "text": "an extensive criminal record, but stated that this factor does not necessarily require leniency. The court stated: In light of the facts regarding these two homicides, Langford’s statement that he considered killing two other people after the Blackwoods’ homicides, and his statement that he would kill again if provoked, we hold that the District Court did not err in holding that lack of an extensive, violent criminal record was not sufficiently substantial to merit leniency. Id. at 951. Finally, the Montana Supreme Court rejected Langford’s argument that the Montana death penalty had not been properly enacted in the manner required by the state constitution. Id. at 951-52. The court therefore affirmed the trial court’s denial of the motion to withdraw the guilty pleas, and ordered that a new date of execution be set. Id. at 952-53. During the pendency of his appeal to the Montana Supreme Court, Langford had filed with that court a petition for postconviction relief. The court stayed the postconviction proceedings pending the completion of his direct appeal. See State v. Langford (Langford II), 249 Mont. 385, 819 P.2d 151, 151 (1991). In the postconviction petition, Lang-ford again argued that the Montana death penalty statutes violated the state constitution. The state supreme court denied the petition, noting that it had already rejected Langford’s state constitutional arguments. Langford filed a second state postconvietion relief petition raising the same state constitutional issue, but adding an argument that the court had denied Langford due process and equal protection by failing to give him the benefit of a state court precedent that Langford believed to be controlling. The state supreme court also denied this petition, in an unpublished order, holding that, “based on res judicata, this Court will not reconsider this issue____ Additionally, we wish to note that the issues raised by Langford in his second petition for post-conviction relief should have been addressed in a petition for rehearing following our decision in Langford I,” a petition which Lang-ford had faded to file. Langford moved in state court for a declaration that hanging was an unconstitutional method of execution. The state" }, { "docid": "23155553", "title": "", "text": "(Langford II), 249 Mont. 385, 819 P.2d 151, 151 (1991). In the postconviction petition, Lang-ford again argued that the Montana death penalty statutes violated the state constitution. The state supreme court denied the petition, noting that it had already rejected Langford’s state constitutional arguments. Langford filed a second state postconvietion relief petition raising the same state constitutional issue, but adding an argument that the court had denied Langford due process and equal protection by failing to give him the benefit of a state court precedent that Langford believed to be controlling. The state supreme court also denied this petition, in an unpublished order, holding that, “based on res judicata, this Court will not reconsider this issue____ Additionally, we wish to note that the issues raised by Langford in his second petition for post-conviction relief should have been addressed in a petition for rehearing following our decision in Langford I,” a petition which Lang-ford had faded to file. Langford moved in state court for a declaration that hanging was an unconstitutional method of execution. The state trial court denied the motion as moot because Langford had chosen hanging rather than the other available alternative method of lethal injection. State v. Langford (Langford III), 254 Mont.44, 833 P.2d 1127, 1127-28 (1992). The Montana Supreme Court affirmed the trial court’s order on appeal for the same reason. Id. 833 P.2d at 1129. In December 1991, Langford filed his petition for writ of habeas corpus in the federal district court. The district court conducted a limited evidentiary hearing to determine whether MacKay had provided ineffective assistance by failing to advise Langford that he had a right to remain silent at the psychiatric evaluation. The district court held that Mac-Kay’s failure to advise could have caused no prejudice because Langford was properly advised by the hospital staff. The district court held that the state courts had held a full and fair evidentiary hearing with regard to all other allegations of ineffective assistance. The district court granted respondents’ motion for summary judgment and denied Langford’s petition for writ of habeas corpus. The district court rejected all" }, { "docid": "16072517", "title": "", "text": "relief on his claim of denial of access to the courts to raise a Ford claim. B. Right to assert Eighth Amendment cruel and unusual punishment claim’ Plaintiff has an Eighth Amendment right not to be subjected to cruel and unusual punishment, and substantial case-law supports the contention that this right attaches until his successful execution. See Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1878) (while holding execution by shooting not cruel and unusual punishment, stating that cruel and unusual punishment includes “torture” and “unnecessary cruelty”); State v. Perry, 610 So.2d 746 (La.1992) (holding involuntary medication of incompetent death row prisoner violates state constitutional prohibition against cruel and unusual punishment and right to privacy where medication administered for neither protection nor medical interest of death row prisoner); Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (Eighth Amendment violated by the execution of individuals who were under age 16 when crime committed); Karl Lagrand v. Stewart, 173 F.3d 1144 (9th Cir.) (holding execution by lethal gas unconstitutional), stay vacated, 525 U.S. 1173, 119 S.Ct. 1107, 143 L.Ed.2d 106, cert. dismissed, — U.S. -, 119 S.Ct. 1450, 143 L.Ed.2d 538 (1999); Rupe v. Wood, 863 F.Supp. 1315 (W.D.Wash.1994) (finding that, although death by hanging is not generally unconstitutional, where there is significant risk of decapitation in hanging of obese death row inmate, hanging violates Eighth Amendment), aff'd, 93 F.3d 1434 (9th Cir.1996) (issue moot because of change in Washington capital statute), cert. denied, 519 U.S. 1142, 117 S.Ct. 1017, 136 L.Ed.2d 894 (1997). Plaintiffs right to meaningful access to the courts to assert that right requires that counsel have some access to the prisoner during the last hour before the execution and be permitted to witness his execution and have access to a telephone until execution has been successfully carried out. Plaintiff Coe has met the injunction standard on this claim. This court finds that Plaintiffs right to access the courts to raise an Eighth Amendment claim of cruel and unusual punishment is decidedly not frivolous, and his interest in being free from cruel and" }, { "docid": "23155575", "title": "", "text": "and unusual punishment in violation of the Eighth Amendment. We address these arguments in order. 1. The Montana State Court’s Consideration of Mitigating Evidence As with his guilty plea, Langford’s own conduct overhangs the issue of the state courts’ consideration of mitigating evidence. Langford instructed MacKay to offer no evidence of mitigation, and to convey to the court Langford’s desire for the death penalty. Langford confirmed his position in his own testimony. Of course, Langford’s wishes alone cannot support or justify his death penalty; his sentence must be in accordance with constitutionally sufficient standards of state law. We conclude that it is. Langford argues that his death sentences violate the Sixth, Eighth, and Fourteenth Amendments because the Montana state courts failed to consider, weigh, and give effect to certain mitigating evidence. He points to the following evidence contained in the presentence or hospital report: (1) Lang-ford admitted to having used marijuana daily and LSD every other day (but not at the time of the murders); (2) Langford had a troubled family life and suffered abuse as a child; (3) Langford lived in a children’s correctional facility between the ages of 10 and 12, and then with his grandparents until age 18; (4) Langford put himself in the worst possible light by, for example, saying that he received poor grades in school when his grades actually were above average; (5) Langford’s parents were cold and indifferent toward him when questioned by the probation officer; (6) Langford may have requested the death penalty as retribution against his parents; and (7) Langford had suicidal tendencies. He asserts that the sentencing court not only failed to consider these factors as mitigating, it made no written findings discussing their effect. Langford relies heavily on Smith v. McCormick, 914 F.2d 1153, 1169 (9th Cir.1990). In that case, we reversed a Montana death penalty, in part because of inadequate consideration of mitigating evidence. We found several constitutional errors in Montana’s procedures for assessing mitigating evidence. First, we held that Montana misused the standard that no mitigating circumstance was “sufficiently substantial” to call for leniency. Id. at 1164." }, { "docid": "23155573", "title": "", "text": "competent is supported by the record. The second factual issue that Lang-ford disputes is that he pleaded guilty because he did not want to spend a lot of time in prison. Langford does not dispute, however, that this is what he said to MacKay. Therefore, this finding is entitled to the presumption of correctness. The third factual finding that Lang-ford disputes is that he did not put his mental state at issue. The state supreme court found that Langford did not put at issue his mental state as it existed at the time of the commission of the crimes, after he was arrested, at the time he entered his guilty pleas, or at the sentencing hearing. Lang-ford argues that the fact that he was subjected to a psychiatric evaluation means that he put his mental state at issue. Langford does not dispute, however, that he raised no issue of competence at any point in his judicial proceedings. This factual finding is entitled to the presumption of correctness. Finally, Langford disputes the finding that there was no showing that appointment of a defense psychiatrist was warranted. Lang-ford emphasizes that MacKay testified that he was unaware of the Ake decision. See Ake, 470 U.S. at 83, 105 S.Ct. at 1096. As we have just pointed out, however, the record supports the finding that there were no facts suggesting that Langford’s mental state would be an issue. We conclude, therefore, that there is no merit to any of Langford’s arguments that the presumption of correctness should not be applied to the state courts’ findings. We turn, therefore, to Langford’s challenges to his sentence. B. The Sentence of Death Langford presents three arguments in attacking the validity of his death sentence. First, he contends that the sentencing court failed properly to consider and weigh mitigating circumstances. Second, he asserts that the Montana death penalty violates the Montana constitution and that, in refusing to recognize the precedent establishing this point, the Montana Supreme Court denied him due process and equal protection of the laws. Third, Langford contends that his method of execution, hanging, is cruel" }, { "docid": "23155574", "title": "", "text": "no showing that appointment of a defense psychiatrist was warranted. Lang-ford emphasizes that MacKay testified that he was unaware of the Ake decision. See Ake, 470 U.S. at 83, 105 S.Ct. at 1096. As we have just pointed out, however, the record supports the finding that there were no facts suggesting that Langford’s mental state would be an issue. We conclude, therefore, that there is no merit to any of Langford’s arguments that the presumption of correctness should not be applied to the state courts’ findings. We turn, therefore, to Langford’s challenges to his sentence. B. The Sentence of Death Langford presents three arguments in attacking the validity of his death sentence. First, he contends that the sentencing court failed properly to consider and weigh mitigating circumstances. Second, he asserts that the Montana death penalty violates the Montana constitution and that, in refusing to recognize the precedent establishing this point, the Montana Supreme Court denied him due process and equal protection of the laws. Third, Langford contends that his method of execution, hanging, is cruel and unusual punishment in violation of the Eighth Amendment. We address these arguments in order. 1. The Montana State Court’s Consideration of Mitigating Evidence As with his guilty plea, Langford’s own conduct overhangs the issue of the state courts’ consideration of mitigating evidence. Langford instructed MacKay to offer no evidence of mitigation, and to convey to the court Langford’s desire for the death penalty. Langford confirmed his position in his own testimony. Of course, Langford’s wishes alone cannot support or justify his death penalty; his sentence must be in accordance with constitutionally sufficient standards of state law. We conclude that it is. Langford argues that his death sentences violate the Sixth, Eighth, and Fourteenth Amendments because the Montana state courts failed to consider, weigh, and give effect to certain mitigating evidence. He points to the following evidence contained in the presentence or hospital report: (1) Lang-ford admitted to having used marijuana daily and LSD every other day (but not at the time of the murders); (2) Langford had a troubled family life and suffered abuse" }, { "docid": "22276262", "title": "", "text": "federal habeas corpus, the petitioner unsuccessfully claimed that hanging violated the Eighth Amendment. Prior to the date set for his execution, “the Montana legislature abolished hanging, leaving only lethal injection as a means of execution.” Id. at 1382. The petitioner thereafter filed a Rule 60(b) motion in the district court, alleging that this change in Montana law authorized the court to revisit its judgment denying his petition for habeas corpus relief. The court denied his motion, and the petitioner filed a notice of appeal. The court of appeals interpreted its pre-AEDPA precedent, Lynch v. Blodgett, 999 F.2d 401, 402-03 (9th Cir.1993), to preclude it from entertaining a petitioner’s appeal absent a certificate of probable cause (the COA’s pre-AEDPA analog). In the court’s view, AEDPA required a COA in all circumstances in which a certifícate of probable cause was previously required. Because the petitioner could obtain neither a COA nor a certificate of probable cause, the court did not decide whether AEDPA or pre-AEDPA law applied. In other words, the denial of a meritorious constitutional claim was required in either case, and petitioner failed to show this. Langford, 134 F.3d at 1382. The Ninth Circuit’s decision in Lynch, the basis for Langford’s result, relied on this circuit’s decision in Lindsey v. Thigpen, 875 F.2d 1509, 1512 (11th Cir.1989) (per curiam). Lindsey, however, is inap-posite to Langford and to the three cases we decide today. First, in Lindsey, a pre-AEDPA case, we had no opportunity to consider AEDPA’s SSHP restrictions. Second, the petitioner in Lindsey did not file a true Rule 60(b) motion, even though he labeled it as such. The petitioner alleged in his motion, which challenged the constitutionality of his death sentence, that (1) “the district court should reconsider his claim regarding the ‘especially heinous, atrocious or cruel’ aggravating factor in light of [Maynard v.] Cartwright[, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) ]”; and (2) “the trial judge’s override of the jury’s recommendation of life imprisonment violated the sixth amendment....” Lindsey, 875 F.2d at 1511. Because his filing was really an SSHP in Rule 60(b)’s clothing," }, { "docid": "23155563", "title": "", "text": "370. Langford utterly fails to meet this requirement. Indeed, the record strongly supports the determination of the state courts and the district court that, even if Langford had been advised as his present counsel now urges, and even if he had been offered a defense psychiatrist, he would have pleaded guilty anyway. Once it was clear that MacKay could not guarantee that Langford would not spend a long time in prison, Langford was determined and unequivocal in his decision to plead guilty and seek the death penalty. Unlike decisions about trial strategies, the decision to plead guilty was Langford’s to make, and Montana’s Rules of Professional Conduct bound MacKay to that decision. See Montana Rules of Professional Conduct, 1.2(a) (“[T]he lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered____”). We conclude, therefore, that Langford was not denied effective assistance of counsel in his plea proceeding. The state trial court consequently did not violate Langford’s constitutional rights in refusing to permit him to withdraw the plea. 2. The District Court’s Application of the Presumption of Correctness to the State Courts’ Findings of Fact Langford contends that the district court’s analysis, which we have just accepted, is fatally flawed because the district court improperly accorded a presumption of correctness to several of the state courts’ fact findings. A state court’s factual findings generally are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). See Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir.1994). Langford argues, however, that the district court should not have accorded the presumption of correctness to various findings because one or more of the following exceptions to § 2254 apply: (1) the merits of the factual disputes were not resolved, (2) Langford was denied due process in the state proceedings, and (3) the factual findings are “not fairly supported” by the record of the state court proceedings. See 28 U.S.C. § 2254(d)(1),(7),(8). We address the due process claim first, and then deal with Lang-ford’s other challenges to the state factual findings as they arise in connection with" } ]

[ { "docid": "22350208", "title": "", "text": "court properly granted summary judgment against Farrow on his retaliation claim. A. Eighth Amendment Violations Athough the United States Constitution does not require comfortable prisons, neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Eighth Amendment governs “the treatment a prisoner receives in prison and the conditions under which he is confined.” Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). However, “[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Anendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). “After incarceration, only the ‘unnecessary and wanton infliction of pain’ ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations omitted)). In Estelle v. Gamble, the Supreme Court held that a prison official’s “deliberate indifference to [the] serious medical needs of [a] prisoner! ] constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104, 97 S.Ct. 285 (quotation marks and citation omitted); see Campbell v. Sikes, 169 F.3d 1353, 1363 (11th Cir.1999). “However, not ‘every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.’ ” McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir.1999) (citation omitted); see Estelle, 429 U.S. at 106, 97 S.Ct. 285 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). The inadvertent or negligent failure to provide adequate medical care “cannot be said to constitute ‘an unnecessary and wanton infliction of pain.’ ” Estelle, 429 U.S. at 105-06, 97 S.Ct. 285. To show that a prison official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry. Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.2000); Adams v. Poag, 61" } ]

[ { "docid": "682639", "title": "", "text": "for allegations of medical malpractice to attain constitutional proportions. It was held that more than mere tortious conduct must be alleged. It is only where an inmate’s complaint of improper or inadequate medical treatment depicts conduct so cruel or unusual as to approach a violation of the Eighth Amendment’s prohibition of such punishment that a colorable constitutional claim is presented. [Gittlemacker at 6] This standard was described with more particularity in the recent Supreme Court case of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976): [I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute a “wanton infliction of unnecessary pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment (emphasis supplied). See also Fear v. Commonwealth, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969) and Commonwealth ex rel. Gatewood v. Hendrick, 368 F.2d 179 (3d Cir. 1966), cert. denied, 386 U.S. 925, 87 S.Ct. 899, 17 L.Ed.2d 797 (1967). The case of Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974), cert. denied sub nom. Thomas v. Cannon, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974), also spoke in terms of the degree of the alleged harm and, in deciding whether or nor medical care was essential, found the test to be: whether it had been proved that a physician exercising ordinary skill and care at the time of the request for medical care would have concluded that the symptoms of the prisoner evidenced a serious disease or injury;" }, { "docid": "23242799", "title": "", "text": "complaint states a cognizable claim depends ultimately on the applicable law. Analysis of the legal issues in this case is simplified by the Supreme Court’s recent decision in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), with regard to the right to medical treatment under the eighth amendment. Speaking to a state prisoner’s claim that inadequate medical treatment had caused him to suffer cruel and unusual punishment, the Gamble Court stated: [A]n inadvertent failure to provide adequate medical care cannot be said to constitute “a[n unnecessary and] wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. 429 U.S. 105-06, 97 S.Ct. 292 (emphasis added). After articulating this standard of deliberate indifference, the Court proceeded to examine the sufficiency of the allegations in Gamble’s complaint. It concluded that, even under the liberal pleading standards of Haines, the complaint could not be maintained against the defendant doctors because Gamble’s exhaustive description in the complaint of his treatment established that he had received extensive medical care and that the doctors were not indifferent to his needs. 429 U.S. at 107-08 and n.16, 97 S.Ct. 285. The Court expressed no opinion on whether a cause of action had been stated against the other defendants. IV. We think that, measured by the deliberate indifference standard of Gamble, Loe’s allegations regarding the treatment of his broken arm state a claim. A broken arm can be an excruciating injury, and few people would freely choose to delay twenty-two hours or even eleven hours in seeking a doctor’s care. Indeed, an indigent could" }, { "docid": "5016164", "title": "", "text": "was abridged. Accordingly, the plaintiff is unable to meet the stringent standard set forth in Sandin. b. The cruel and unusual punishment claim The gravamen of Mandala’s claims is that he was denied adequate medical care in violation of the Eighth Amendment which prohibits cruel and unusual punishment. The Eighth Amendment requires that prison officials provide “humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994), quoting, Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984). In the seminal case of Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court recognized the standard for Eighth Amendment claims based on a failure to provide medical care, requiring that the plaintiff demonstrate a “deliberate indifference to serious, medical needs.” The Court elaborated on this standard, stating, that deliberate indifference to serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their presence to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Id. at 104-05, 97 S.Ct. at 291-92 (internal quotations and citations omitted). The Estelle Court recognized however that “every claim by a prisoner that he has not received adequate medical treatment [does not] state[] a violation of the Eighth Amendment.” Id. at 105, 97 S.Ct. at 291. [I]n the medical context, ... a complaint that physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege that acts or omissions sufficiently harmful to evidence deliberate indifference to serious" }, { "docid": "12181720", "title": "", "text": "pleadings and affidavits. [Martinez] did not authorize the substitution of prison officials for the court as fact finders.” Sampley, 704 F.2d at 493 n. 3. We approved the Martinez procedure under section 1915 as a means of determining jurisdiction, sorting and clarifying issues, and otherwise elucidating the often obscure complaints filed by pro se plaintiffs. The procedure should be used to determine whether or not a relevant, bona fide dispute exists, not to resolve such a dispute. On the question of medical treatment, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), is controlling. In that case, as in the case at hand, the plaintiff complained that he had been denied treatment by prison medical personnel, and that such denial constituted cruel and unusual punishment. The Court held that: an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Estelle, 429 U.S. at 105-6, 97 S.Ct. at 292. This case does not involve the kind of immediate serious medical needs that would suggest a more critical examination of the paramedic defendant’s motives. Plaintiff’s complaint viewed as a whole reveals that his principal claim is that he was denied an X-ray of his lower back. This is the same claim as the plaintiff made in Estelle, where the court found as follows: Certainly an X-ray of [plaintiffs] lower back might have been in order and other tests conducted that would have led to appropriate diagnosis and treatment for the daily" }, { "docid": "11429722", "title": "", "text": "NRPH for psychiatric care and treatment, we must consider the substantive due process rights of involuntarily committed persons under the Fourteenth Amendment. We find that a jury could reasonably conclude that one or more of the defendants violated the decedent’s constitutional rights in this case, and therefore, summary judgment in favor of all defendants was inappropriate. C. Eighth Amendment 1. Deliberate Indifference Standard The Eighth Amendment to the Constitution prohibits the infliction of cruel and unusual punishment. U.S. Const, amend VIII. The “cruel and unusual punishment” provision is invoked here as it applies to prisoners. As the decedent was involuntarily committed to NRPH for psychiatric treatment, he was similarly situat ed to a prisoner with regard to the Eighth Amendment right to medical care. This court has held that the legal standard for asserting an Eighth Amendment claim regarding medical care for prisoners is “deliberate indifference.” Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc). It is well settled that the “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’... proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). However, not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105, 97 S.Ct. 285. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Id. at 106, 97 S.Ct. 285. “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. (emphasis added). In Estelle, the Supreme Court established the “deliberate indifference” standard. The Court further" }, { "docid": "752846", "title": "", "text": "Id. Thus, while “[c]laims by pretrial detainees are analyzed under the Fourteenth Amendment,” instead of the Eighth Amendment, “[b]ecause pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, ... the same standards” are applied. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). The Eighth Amendment prohibits punishment that is “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society,’” or that involves “the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations omitted). Prison officials’ “[d]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ... proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. 285 (internal citation omitted); see also Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). As such, the state “has an obligation to provide medical care” to those within its custody, and therefore “cannot be deliberately indifferent to the medical needs of its prisoners.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992). “Not every breach of that duty,” however, “is of constitutional proportions.” Lopez, 203 F.3d at 1131 (quoting Estelle, 429 U.S. at 104, 97 S.Ct. 285 (1976)). To state a cognizable Eighth Amendment claim in this context, a prisoner thus “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106, 97 S.Ct. 285; see also Lopez, 203 F.3d at 1131 (deliberate indifference to serious medical needs must be shown); McGuckin, 974 F.2d at 1059. Prison officials are “deliberately indifferent” to “serious medical needs” when they “deny, delay, or intentionally interfere with medical treatment.” Lopez, 203 F.3d at 1131. Deliberate indifference also may be shown “by the way in which prison physicians provide medial care.” McGuckin, 974 F.2d at 1059. On the other hand, “[m]ere negligence in diagnosing or treating a medical condition, without more,” does not implicate the Cruel and Unusual Punishment Clause of the Eighth Amendment." }, { "docid": "22036039", "title": "", "text": "District Court accepted the Natales’ § 1983 claim for inadequate medical care as one arising under the Eighth Amendment right of a convicted prisoner to receive adequate medical care, articulated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (finding that a failure to provide adequate medical care constitutes cruel and unusual punishment). Daniel Natale was not, at any time relevant to this case, a convicted prisoner. Rather, he was a pre-trial detainee. While the Eighth Amendment prohibits the infliction of cruel and unusual punishment upon prisoners, it applies only “after [the State] has secured a formal adjudication of guilt in accordance with due process of law.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). In this context, the Natales should have pleaded their § 1983 claim as one based on the Due Process Clause of the Fourteenth Amendment. Their failure to do so does no lasting damage, however, as the Supreme Court has concluded that the Fourteenth Amendment affords pretrial detainees protections “at least as great as the Eighth Amendment protections available to a convicted prisoner,” without deciding whether the Fourteenth Amendment provides greater protections. Id. In previous cases, we have found no reason to apply a different standard than that set forth in Estelle (pertaining to prisoners’ claims of inadequate medical care under the Eighth Amendment) when evaluating whether a claim for inadequate medical care by a pre-trial detainee is sufficient under the Fourteenth Amendment. See, e.g., Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir.1987). We therefore evaluate the Natales’ Fourteenth Amendment claim for inadequate medical care under the standard used to evaluate similar claims brought under the Eighth Amendment, the standard used by the District Court to evaluate the Natales’ claim. In Estelle, the Supreme Court held that the Eighth Amendment proscribes deliberate indifference to prisoners’ serious medical needs. 429 U.S. at 103-04, 97 S.Ct. 285. In order to" }, { "docid": "22098916", "title": "", "text": "deliberately indifferent in providing care, and/or (2) knew of or took part in implementing any policy that was deliberately indifferent to inmates’ needs for adequate medical care. Under the Eighth Amendment, a lack of proper inmate medical care can be “cruel and unusual punishment” only if “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Because “an inadvertent failure to provide adequate medical care” does not violate the Eighth Amendment, deliberate indifference does not include “a complaint that a physician has been negligent in diagnosing or treating a medical condition.” Id. It is only deliberate indifference — “ ‘an unnecessary and wanton infliction of pain’ ... [or acts] ‘repugnant to the conscience of mankind,’ ” id. — that constitutes conduct proscribed by the Eighth Amendment, d. 97 S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, JJ.)). Such deliberate indifference is impermissible whether it “is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care____” Gamble, 97 S.Ct. at 291 (footnotes omitted). Because section 1983 claims asserting violations of constitutional rights flow through the Fourteenth Amendment, an action brought by a state inmate against a state actor is limited by the reach of that amendment. Construing the protections of the Fourteenth Amendment in such cases, we have written that “an individual instance of negligence on the part of a jailor does not violate the due process clause of the Fourteenth Amendment, for that clause was intended to secure the individual from the arbitrary exercise of the power of government. But the clause does protect against arbitrariness and abuse of power, as distinguished from negligence or lack of due care.” Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir.1986) (discussing Daniels v. Williams, 474 U.S. 327,106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). See also Daniels, 106 S.Ct. at 664 (indicating this standard applies to prisoners’" }, { "docid": "22410187", "title": "", "text": "483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Acierno v. Cloutier, 40 F.3d 597, 616 (3d Cir.1994) (en banc). In determining whether defendants are entitled to claim qualified immunity, we engage in a three-part inquiry: (1) whether the plaintiffs alleged a violation of their constitutional rights; (2) whether the right alleged to have been violated was clearly established in the existing law at the time of the violation; and (3) whether a reasonable official knew or should have known that the alleged action violated the plaintiffs’ rights. A. We now turn to whether the plaintiffs alleged a violation of their constitutional rights. The Eighth Amendment prohibits the imposition of “unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” See Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that the Eighth Amendment’s prohibition against cruel and unusual punishment requires prison officials to provide basic medical treatment to those whom it has incarcerated. The Court articulated the standard to be used: In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Id. at 106, 97 S.Ct. 285. Therefore, to succeed under these principles, plaintiffs must demonstrate (1) that the defendants were deliberately indifferent to their medical needs and (2) that those needs were serious. See id. The defendants agree that insulin-dependent diabetes mellitus is a serious illness, and therefore only the former question is in issue here. It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute “deliberate indifference.” As the Estelle Court noted: “[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’” Id." }, { "docid": "14731898", "title": "", "text": "needs will implicate the protections of the Eighth Amendment. Deliberate indifference is characterized by obduracy or wantonness — it cannot be predicated on negligence, inadvertence, or good faith error. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). For liability to attach, Defendants must have been “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed].” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Indeed, “Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference.” Blackmore, 390 F.3d at 896. In the medical context, the Supreme Court emphasized that “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’” Estelle, 429 U.S. at 105-06, 97 S.Ct. 285. Therefore, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. To state a cognizable claim, Plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” — indifference that offends the “evolving standards of decency” under the Eighth Amendment. Estelle, 429 U.S. at 106, 97 S.Ct. 285. The Complaint Does Not Support a Constitutional Violation In the proceedings below, the parties agreed that Plaintiffs condition meets the objective component of his claim. We also agree. There is no doubt that a rare and potentially fatal form of cancer meets the objective criteria of an Eighth Amendment claim. See, e.g., Jones v. Muskegon County, 625 F.3d 935, 942 (6th Cir.2010) (holding colorectal cancer is a “sufficiently serious medical need”). The remaining issue becomes whether the Complaint supports Plaintiffs claim that Defendants Dr. Vadlamudi and Payne acted with deliberate indifference to his medical needs. Because it is well-settled that qualified immunity must be assessed in the context of each individual’s specific conduct, this Court analyzes separately the allegations concerning the conduct of each Defendant." }, { "docid": "22301390", "title": "", "text": "fail to state an Eighth Amendment claim in connection with the handling of their alleged “addictive sexuality.” I R., Tab 1, at 3. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), laid down the controlling principles. The Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ ... proscribéd by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 291 (citation omitted). However, “in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain,’ or to be ‘repugnant to the conscience of mankind.’” Id. at 105-06, 97 S.Ct. at 291-92. To state a cognizable Eighth Amendment claim of this type, a prisoner “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency1 in violation of the Eighth Amendment ....” Id. at 106, 97 S.Ct. at 292 (footnote omitted). Conduct which, at most, is medical malpractice re-dressable in state court does not represent cruel and unusual punishment. Id. at 107, 97 S.Ct. at 292-93. In Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981), we applied1 the Eighth Amendment standards of Estelle in the medical treatment context. We upheld the findings and ruling below which afforded relief on the claim. Nevertheless, we pointed out the strict requirements of Estelle. The state has a constitutional obligation to provide medical care for those whom it is punishing by incarceration. This obligation requires the state to make available to inmates a level of medical care which is reasonably designed to meet the routine and emergency health care of inmates, including medical treatment for psychological or psychiatric care, inter alia. Id at 574. However, “accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment of a mental condition do not constitute a medical wrong under the Eighth Amendment.” Id. at 575. The two-prong Estelle standard “‘requires" }, { "docid": "20149347", "title": "", "text": "and fresh outdoor air does not present a condition which is so foul, so inhuman, and so violative of the basic concepts of decency that it falls within the proscriptions of the Eighth Amendment. B. Deliberate Indifference to Serious Medical Needs Plaintiff claims he suffers from neck, back, and shoulder injuries, emphysema, and ankle, knee, and leg problems. Plaintiff’s Second Amended Complaint at 4. He concludes Defendants Mathews and Nguyen have been deliberately indifferent to his physical and psychological needs. Id. at 5. In assessing Plaintiff’s claims of cruel and unusual punishment, the Court must consider “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Cruel and unusual punishment, however, only consists of that punishment which involves “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). Deliberate indifference to seri ous medical needs of prisoners constitutes “the unnecessary and wanton infliction of pain.” Id. The indifference may be manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). However, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Id. at 105-06, 97 S.Ct. at 292. To state a valid claim of medical mistreatment under the eighth amendment, a prisoner must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106, 97 S.Ct. at 292 (footnote omitted). Plaintiff’s medical records indicate he has been treated on a regular basis for numerous medical complaints, including but not limited to, his enumerated medical needs. Defendants’ Response to Plaintiff’s Motion" }, { "docid": "22769604", "title": "", "text": "occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996). Our task is to apply the Dickerson analysis to the case before the court. First, we determine whether a constitutional right was violated. The constitutional right at issue is the Eighth Amendment proscription against “cruel and unusual punishments.” Before we can use the Eighth Amendment as a practical legal standard, we must interpret its very abstract language into a more concrete form. In the context of medical care for prisoners, the Supreme Court has long held that the standard for asserting an Eighth Amendment claim is deliberate indifference: an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Thus, properly stated, the right at issue is Wade’s right not to have his serious medical needs treated with deliberate indifference. “[T]he Eighth Amendment does not apply to every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations involving ‘serious’ injury inflicted by prison officials acting with a culpable state of mind.” Hudson v. McMillian, 503 U.S." }, { "docid": "21566430", "title": "", "text": "1987, Evans was transferred to Avon Park Correctional Institution (“Avon Park”), a “state of the art” facility designed to suit the needs of handicapped inmates. The eighth amendment, which prohibits “cruel and unusual punishment,” provides the constitutional foundation for this cause of action. The amendment proscribes not only punishment which is physically barbarous but also punishment involving either the unnecessary and wanton infliction of pain or. the imposition of pain totally without penalogical justification. Ort v. White, 813 F.2d 318, 321 (11th Cir.1987), citing Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251, 258-59 (1976), and Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59, 68-69 (1981). These principles apply both to punishment which has been judicially imposed and to punishment resulting from the conditions of confinement. Ort, 813 F.2d at 321, citing Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399, 69 L.Ed.2d at 69. Conduct which does not purport to be punishment, however, violates the eighth amendment only when it involves more than ordinary lack of due care for a prisoner’s interests or safety. Thus, in Estelle, the Supreme Court held that “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. at 292, 50 L.Ed.2d at 261. Instead, “only deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 292, 50 L.Ed.2d at 260 (citation and quotation marks omitted). “It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishment Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Whitley v. Albers, 475 U.S. 312, 319, 106 5.Ct. 1078, 1084, 89 L.Ed.2d 251, 260-61 (1986). Evans first claims that the district court incorrectly relied upon Whitley and erroneously instructed" }, { "docid": "23633883", "title": "", "text": "pain’ ”... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’ ” Id. at 319, 106 S.Ct. 1078 (quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations omitted))). Crucial to establishing an “unnecessary and wanton infliction of pain” is some proof that officials acted with specific intent. This specific-intent requirement for an Eighth Amendment violation applies to both failure to provide proper medical care, Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir.1996), and excessive force, see Whitley, 475 U.S. at 319-21, 106 S.Ct. 1078. However, the exact nature of the specific intent required depends on the type of claim at issue. Whitley, 475 U.S. at 319, 106 S.Ct. 1078. Thus, we address each claim in turn. V. “DELIBERATE INDIFFERENCE” TO SERIOUS MEDICAL NEEDS The Eighth Amendment’s proscription of cruel and unusual punishments prohibits prison officials from exhibiting deliberate indifference to prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Supreme Court has been careful to note, however, that “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 106, 97 S.Ct. 285. Thus, in Estelle v. Gamble, which first enunciated the “deliberate indifference” standard, the Supreme Court reinstated the district court’s dismissal of a prisoner’s § 1983 complaint for failure to state a claim. Noting that the complaint’s primary allegation was that “more should have been done” to diagnose and treat a back injury, the Court explained, “A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice.” Id. at 107, 97 S.Ct. 285. Subsequent Supreme Court cases have refined the inquiry. In Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), the Supreme Court explained that the Eighth Amendment applies only to punishments and that prison conditions are" }, { "docid": "13633236", "title": "", "text": "333 (2nd Cir. 1974); Johnson v. Glick, 481 F.2d 1028 (2nd Cir.), cert. denied 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973); Anderson v. Nosser, 456 F.2d 835 (5th Cir. en banc), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972). However this does not mean that there is no constitutional protection for a pre-trial detainee. The Seventh Circuit in Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976) stated that suits by pre-trial detainees alleging conditions amounting to cruel and unusual punishment are better analyzed as due process attacks on conditions that exceed the sole permissible state interest of ensuring presence at trial. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court distinguished medical malpractice cases cognizable under state tort law and those rising to the level of a constitutional abridgement. After discussing the government’s obligation to furnish medical services to prisoners, the Court articulated the standard for determining whether a constitutional violation had occurred: “We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ Gregg v. Georgia, (428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859) . . . proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” ■ “This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. “Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute a ‘wanton infliction of unnecessary pain’ or to be ‘repugnant to the conscience of mankind.’ Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a" }, { "docid": "22928852", "title": "", "text": "his liberty, care for himself.” We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976) (footnotes and citations omitted). The Court distinguished “deliberate indifference to serious medical needs” from an inadvertent failure to provide adequate medical care, which does not constitute cruel and unusual punishment for purposes of the Eighth Amendment. Id. at 105, 97 S.Ct. at 291. Although “an express intent to inflict unnecessary pain is not required,” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986), “obduracy and wantonness” are indications of deliberate indifference. To be cruel and unusual punishment, conduct that does not purport to be punish ment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. This reading of the Clause underlies our decision in Estelle v. Gamble, supra, [429 U.S.] at 105-106 [97 S.Ct. at 291-92], which held that a prison physician’s “negligen[ee] in diagnosing or treating a medical condition” did not suffice to make out a claim of cruel and unusual punishment. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause. Id. Plaintiff argues that the magistrate’s report and recommendation, which the district court adopted, merely states that the prison had developed an ongoing medical plan for the treatment of plaintiff’s wound that did not result in harm to the wound as it healed without infection, and fails to address the specific conduct of which plaintiff complains — the refusal to treat the wound for five days or to provide dressings or pain medication. We agree with plaintiff that the magistrate’s report ignores the alleged lack" }, { "docid": "20149348", "title": "", "text": "Id. The indifference may be manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). However, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Id. at 105-06, 97 S.Ct. at 292. To state a valid claim of medical mistreatment under the eighth amendment, a prisoner must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106, 97 S.Ct. at 292 (footnote omitted). Plaintiff’s medical records indicate he has been treated on a regular basis for numerous medical complaints, including but not limited to, his enumerated medical needs. Defendants’ Response to Plaintiff’s Motion for Preliminary Injunction and Defendants’ Motion to Dismiss or for Summary Judgment, filed February 18, 1986, Plaintiff’s Medical Records. Plaintiff has mentioned that, with regard to his emphysema, he “does not receive any of the treatment programs outlined and recommended by the National Institute of Health....” Plaintiff’s Motion for Summary Judgment, filed August 11, 1986, at 2. A difference of opinion over matters of medical judgment does not give rise to a constitutional claim. See Massey v. Hutto, 545 F.2d 45 (8th Cir.1976). Although deliberate indifference to a serious medical need is a cognizable section 1983 claim, Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), not all complaints concerning medical treatment are actionable: [A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions" }, { "docid": "752845", "title": "", "text": "cruel and unusual punishment. The undersigned disagrees. In the .context of medical treatment, “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (citation omitted). That is, the state “does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Id. Therefore, because there has been “no formal adjudication of guilt” against plaintiff “at the time he required medical care, the Eighth Amendment has no application” to his claim here. Id. Under the Due Process Clause, on the other hand, “the responsible government or governmental agency” must “provide medical care to persons ... who have been injured while being apprehended by the police.” Id. Indeed, “the due process rights of’ such persons “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id. Thus, while “[c]laims by pretrial detainees are analyzed under the Fourteenth Amendment,” instead of the Eighth Amendment, “[b]ecause pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, ... the same standards” are applied. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). The Eighth Amendment prohibits punishment that is “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society,’” or that involves “the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations omitted). Prison officials’ “[d]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ... proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. 285 (internal citation omitted); see also Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). As such, the state “has an obligation to provide medical care” to those within its custody, and therefore “cannot be deliberately indifferent to the medical needs of its" }, { "docid": "17583922", "title": "", "text": "would cause others to inflict’ constitutional harms.” Preschooler II v. Clark County School Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir.2007) (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978)). The causes of action Defendant contests arise under the Eighth Amendment’s bar on cruel and unusual punishment as interpreted by the Supreme Court in Estelle v. Gamble, which held that: Deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. ... [I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations omitted) (emphasis added). In sum, pursuant to the multitude of cases following Estelle, for Plaintiffs to properly assert a claim against Defendant, Plaintiffs must allege that: (1) Proveneio had a serious medical need, (2) which individuals were deliberately indifferent to (3) because of the policies Defendant established, (4) while acting under the color of state law, (5) were so deficient as to be the “moving force” behind the violation of Provencio’s Eighth Amendment rights. The second prong of the qualified immunity analysis inquires “whether the right at" } ]

[ { "docid": "1367469", "title": "", "text": "April 1, 1998. By memorandum dated March 17, 1998, Lt. Barnes was informed that his promotion was delayed pending completion of administrative and disciplinary action related to nonjudicial punishment he received for. conduct unbecoming an officer. Lt. Barnes did not receive this notice until April 21, 1998. Ratification by the Secretary of the Navy and an additional delay was requested on August 14, 1998, and approved on August 24, 1998. On April 26, 1999, Lt. Barnes’ name was removed from the promotion list. Lt. Barnes alleges the delay and the removal of his name from the promotion list did not comply with statutory and regulatory provisions and the conditions placed on the delay by the Navy. He also contends the subsequent decision of the Navy Board for Correction of Military Records not to grant him relief was arbitrary and capricious. Statutory and regulatory framework for military promotions Evaluation and recommendation of eligible officers for promotion is made by a selection board of commissioned officers. 10 U.S.C. §§ 611-17, 622-23. The board’s promotion list is forwarded through the Secretary of the Navy for recommendation, to the Secretary of Defense for approval, and then to the President of the United States. 10 U.S.C. §§ 618(b), 624(a)(1) and (c). The President, with the advice and consent of the Senate, has the authority to promote. [The President] shall have Power, by and with the Advice and Consent of the Senate... [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. United States Constitution, art. II, § 2, cl. 2. Statutory provision is similar. 10 U.S.C. § 624(e) provides: Appointments under this section shall be made by the President, by and with the advice and consent of the Senate, except that appointments under this section in the grade of first lieutenant or captain or lieutenant (junior grade) or lieutenant shall be made by the President alone. Following Presidential approval of the selection board’s report, the names of all officers approved for" } ]

[ { "docid": "1367520", "title": "", "text": "(an infirmity in Lt. Barnes’ purported delay), the Board concluded that: since no legally valid delay had been effected, Title 10 U.S.C. 624(a)(2) made it mandatory that petitioner, who was an officer on a promotion list for his competitive category, be promoted to the next higher grade when additional officers in that grade and competitive category were need ed____ To avoid a requirement to effect Petitioner’s promotion, all that would have been needed would have been to obtain a summary Secretarial review and approval of a delay request before the date the promotion was scheduled. However, since this was not done, the Board finds that Petitioner’s promotion should have been effected when scheduled. Plaintiffs Cross-Motion, App. unnumbered 9. The Board recommended his promotion be recognized with appropriate record correction despite that fact that following Senate confirmation of his promotion, there was investigation into serious allegations which led to a Board of Inquiry. The Board of Inquiry found insufficient evidence to support the allegations, but concluded that while the officer should be retained in the Navy, he should be removed from the promotion list because of findings that the officer served alcohol, showed pornographic movies to juveniles without their parent’s consent and often consumed alcohol to excess at social functions and then carelessly discussed official matters. In the other case cited by Lt. Barnes (6532-96; August 4, 1998), a Marine sought reinstatement and promotion. Allegations of misconduct involved sexual harassment of and fraternization with an enlisted female Marine and conduct unbecoming an officer. The Board concluded that no action was taken to extend an initial promotion delay beyond six months as required by subsection 624(d)(4); consequently, the officer should have been promoted the following day. Plaintiffs Cross-Motion, App. unnumbered 45. In Robinson, the Board opined that his promotion should have been effected because the Secretary of the Navy had not approved the delay before the promotion’s effective date. While not acknowledging the concept of promotion by operation of law, the Board in Robinson concluded that the lack of Secretarial approval of a delay prior to the effective date of the promotion" }, { "docid": "1367479", "title": "", "text": "list, Lt. Barnes should be the last on the list to be promoted, but he should not be required to show cause why he should be retained in the Navy. A.R. II, p. 15. A March 17, 1998 memorandum to Lt. Barnes stated his promotion was delayed. The memorandum cited his nonjudieial punishment and stated that he may not be qualified for promotion. The delay was until “all related administrative or disciplinary action is completed.” A.R. II, p. 39. Lt. Barnes did not receive this memorandum until April 21, 1998. Starting on April 1, 1998, his projected promotion date, he received pay at the higher rank for a year. On March 19,1998, a Show Cause Authority determined that Lt. Barnes should show cause why he should allowed to remain in the Navy. Citing the prior imposition of nonjudicial punishment, the Board of Inquiry on May 27, 1998 determined he had engaged in conduct unbecoming an officer, failed to demonstrate acceptable qualities of leadership, and failed to conform to prescribed standards of military deportment. By a vote of 2 to 1, the Board recommended that Lt. Barnes be permitted to remain in the Navy. A.R. V, pp. 1-51. By an August 14, 1998 request, approved on August 24,1998, the March 17,1998 delay of Lt. Barnes’ promotion was ratified and extended by the Assistant Secretary of the Navy. A.R. IV, p. 12. On April 26, 1999, his name was removed from the promotion list. A.R. IV, p. 2. On March 1, 2001, he was released from active duty after twice being passed-over for promotion. On May 16, 2000, Lt. Barnes submitted an Application for Correction of Naval Records which asserted in part that his promotion occurred as a matter of law because of improper delay. S.A.R., Tabs 1 & 2. On January 11, 2001, the Board for Correction of Navy Records determined Lt. Barnes had not been promoted as a matter of law. S.A.R., Tab 6. On December 19, 2001, upon consideration of equitable factors, the Board again rejected his application. 2nd S.A.R., pp. 2-3. Legal principles As “decisions as to the" }, { "docid": "1367527", "title": "", "text": "that he would receive retired pay commensurate with the grade of colonel beginning March 1, 1999. . The Commanding Officer wrote: LT Barnes is on the current selection list for promotion to Lieutenant Commander and is expected to be promoted in approximately June 1998. However, the conduct that resulted in this mast is not the conduct expected of a Lieutenant Commander. Accordingly, per reference (a), I most strongly recommend that his promotion be delayed such that he will be the last to be promoted in his year group. I believe that LT Barnes has the potential to be a strong, positive asset for the Navy. Therefore, I do not recommend that his promotion be withheld, nor do I recommend that he be required to show cause for retention. A.R. II, p. 15. . 10 U.S.C. § 1182(d)(1) provides: \"If a board of inquiry determines that the officer has established that he should be retained on active duty, the officer’s case is closed.\" . Although the government posits this argument in support of its assertion that there was an administrative proceeding pending as of August 24, 1998 which would validate the extension of the March 17, 1998 delay, the court also determines whether it supplies the necessary statutory grounds for the March 17, 1998 delay. . MILPERSMAN 3410100 is now located at section 1611-010. The parties did not provide the court with the prior version. The court presumes there is no substantive difference between the two. Here, the report of non-judicial punishment was forwarded through the chain of command to the Chief of Naval Personnel who responded with the administrative show cause proceedings concerning Lt. Barnes’ retention in the Navy, not a show cause proceeding as to his qualification for promotion. . Because of other statutory and regulatory errors, the court does not address whether subsection 624(d)(2) or due process would require the existence of regulations governing determination of cause to believe the officer is not mentally, physically, morally or professionally qualified for the promotion as a condition precedent to a delay of promotion under subsection 624(d)(2). . Semantics aside, the" }, { "docid": "1367485", "title": "", "text": "the military’s actions are inherent; they are the applicable statutes and regulations,’ Adkins, 68 F.3d at 1323. Lindsay v. United States, 295 F.3d 1252, 1257-58 (Fed.Cir.2002). Accordingly, the court will apply statutes and regulations to the administrative record. Failure to adhere to those standards is remedied by monetary relief. “If the Court of Federal Claims finds that the Army improperly exercised its authority to retire Adkins, he will be entitled to back pay calculated in accordance with law and reinstatement to the rank of lieutenant colonel from the date of his retirement.” Adkins, 68 F.3d at 1327. While both sides rely on numerous cases, Rolader v. United States, 42 Fed.Cl. 782 (1999) is the closest to the case sub judice, at least according to plaintiff. In Rolader, the court concluded the Air Force did not follow its procedures in initiating the removal of plaintiffs name from the promotion list. Accordingly, because the officer was not removed from the promotion list on the date his promotion delay expired, the court held that Lt. Col. Rolader was promoted by operation of law: There being insufficient proof that the Air Force complied with its own regulations in initiating a recommendation of removal, we hold that the delay to plaintiffs promotion expired on June 30, 1993. Because plaintiffs name was not removed from the promotions list before that date, he was promoted by operation of law. 42 Fed.Cl. at 787 (emphasis supplied). See also Voge v. United States, 844 F.2d 776, 782 (Fed.Cir.1988)(“absent a statute or regulation entitling a service member to promotion as a matter of law, the Claims Court [now the Court of Claims] has no authority to entertain this claim [for promotion as a matter of law].”). Summary of procedural errors alleged Lt. Barnes alleges there was no statutory basis for the March 17, 1998 delay memorandum and that, alternatively, the period of delay specified therein (until the completion of all related administrative and disciplinary proceedings) expired. He also argues he was not given notification of a delay in his promotion prior to April 1, 1998, the effective date of his" }, { "docid": "1367521", "title": "", "text": "he should be removed from the promotion list because of findings that the officer served alcohol, showed pornographic movies to juveniles without their parent’s consent and often consumed alcohol to excess at social functions and then carelessly discussed official matters. In the other case cited by Lt. Barnes (6532-96; August 4, 1998), a Marine sought reinstatement and promotion. Allegations of misconduct involved sexual harassment of and fraternization with an enlisted female Marine and conduct unbecoming an officer. The Board concluded that no action was taken to extend an initial promotion delay beyond six months as required by subsection 624(d)(4); consequently, the officer should have been promoted the following day. Plaintiffs Cross-Motion, App. unnumbered 45. In Robinson, the Board opined that his promotion should have been effected because the Secretary of the Navy had not approved the delay before the promotion’s effective date. While not acknowledging the concept of promotion by operation of law, the Board in Robinson concluded that the lack of Secretarial approval of a delay prior to the effective date of the promotion was an error and an injustice warranting relief. The Board recognized that under Section 624(a)(2) the promotion occurred absent a delay that complied with statutory and regulatory requirements. It is unfortunate that this recognition did not occur here. The several failures to comply with statute and regulations in the attempt to delay Lt. Barnes’ promotion were legal error. “[L]e-gal error includes the military’s Violation of statute, or regulation, or published mandatory procedure..” Dodson v. United States, 988 F.2d 1199, 1204 (Fed.Cir.1993), citing Skinner v. United States, 594 F.2d 824, 830, 219 Ct.Cl. 322 (1979). See also Muse v. United States, 21 Cl.Ct. 592, 608 (1990)(“the failure of the rating officials to follow their own regulations was legal error.”). Alternatively, plaintiff argues the Board’s December 2001 decision denying equitable relief was arbitrary and capricious. In the three prior Board cases cited by Lt. Barnes the promotion was effected because of improper delay. In Robinson, as in Lt. Barnes’ case, there was no Secretarial approval of the officer’s delay prior to its projected effective date. In Robinson," }, { "docid": "1367498", "title": "", "text": "unqualified to perform the duties of the higher rank which could justify the delay in the first instance; and alternatively, (2) there was no ongoing related administrative or disciplinary proceedings concerning cause, the temporal parameters of the delay of Lt. Barnes promotion. The court finds that none of the five conditions for promotion delay in 10 U.S.C. § 624(d)(1) or 624(d)(2) existed as of March 17, 1998. As a result, subsection 624(a)(2) mandates that the officer “shall” be promoted. See generally Scarborough v. Principi, 319 F.3d 1346, 1349 (Fed.Cir.2003)(applying as mandatory the “shall” requirement that attorney fee applications under the Equal Access of Justice Act be submitted within thirty days). See also Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1376 (Fed.Cir.2002)(applying as mandatory statutory “shall”). The court also finds that all administrative or disciplinary action related to Lt. Barnes’ nonjudicial punishment were completed on May 27,1998, thus terminating the period of any promotion delay under the Navy’s terms. The provisions of the statute and the terms of the Navy’s delay having expired, Lt. Barnes was promoted by operation of law under subsection 624(a)(2). The court is not impinging on military discretion on the merits of the decision to remove Lt. Barnes’ name from the Senate-approved promotion list. Rather, the court is following statutory mandates, that like regulations, limit the government’s discretion. The court is not ordering the pro motion, but recognizing that the promotion occurred. Law v. United States, 11 F.3d 1061, 1065 (Fed.Cir.1993). Ratification by Secretary of Navy Although not raised by plaintiff, the March 17, 1998 purported delay of Lt. Barnes’ promotion was not ratified until August 24,1998 by Bernard Rostker, Assistant Secretary of the Navy (Manpower and Reserve Affairs). Navy regulation requires a delay of promotion be ratified by the Secretary of the Navy “as soon as practicable.” 23. Delay of Promotion a. Criteria for Promotion Delay. CHNAVPERS or CMC, as appropriate, or a member’s commanding officer, may delay the appointment of an officer selected for promotion. If the appointment is delayed, the delaying officer shall, as soon as practicable, forward the information required by" }, { "docid": "1367514", "title": "", "text": "determined that removal from the promotion list is appropriate, removal action under paragraph 17a may be initiated. Although removal action is contemplated, requests for delay extensions as provided in paragraph 23d shall be submitted to SECNAV as necessary until the officer’s name is removed from the promotion list. Paragraph 17a provides: SECNAV may remove the name of any officer from a promotion list to any grade below 0-7. CHNAVPERS or CMC, as appropriate, may submit requests for such action to SEC-NAV. The government’s position is that the name of the officer can be removed from a promotion list at any time prior to appointment. That position conflicts with the above regulatory constraints that removal action be initiated during a period of promotion delay. Even if the promotion was delayed without compliance with statutory procedure, Lt. Barnes cannot be appointed Lt. Commander — only the President can do that, the government argues. Indeed, the government’s position in this case is that the President’s authority to remove a name from a promotion list is absolute and unaffected by the constraints of the mandatory “shall” of § 624(a)(2). The court’s recognition that Lt. Barnes’ promotion was effected does not impact any substantive military promotion decision. Statutory mandates limit military discretion and constrain delays of Senate confirmed promotions. This is consistent with Law v. United States, 11 F.3d 1061 (Fed.Cir.1993), relied on by the government, which found compliance with the statutory requirements for delay of a promotion in the Coast Guard. Law’s analysis of the Coast Guard’s compliance with the delay provisions and conclusion that the delays in Lieutenant Law’s promotion complied with the statute, is consistent with the analysis applied here, albeit reaching a different conclusion. Distinguishing authority holding that the judiciary is without authority to grant a promotion, the Federal Circuit held that the Court of Federal Claims had jurisdiction to grant relief if the appointment had been effected because of improper delay — if Lt. Law’s arguments about improper delay of promotion were meritorious. “That Law’s claim fails on the merits does not negate the court’s jurisdiction.” Id., at 1065. Here" }, { "docid": "1367493", "title": "", "text": "his qualification for promotion, evince a separate administrative consequence of his misconduct that was outstanding prior to the March 17, 1998 delay memorandum, distinct from the nonjudicial punishment and Board of Inquiry proceedings. “The decision to promote an officer after disciplinary action is a natural administrative consequence of officer misconduct encompassed within the meaning of ‘all administrative and disciplinary matters.’ ” Gov’t Opposition at p. 27. The government however does not point to any record of such an administrative procedure, or a finding of cause to believe he was not qualified for his promotion, the latter being necessary to validate the March 17, 1998 delay and the former necessary to extend any such delay until completion of such a proceeding. Clearly the Navy was not unfamiliar with a cause determination. Two days after the March 17, 1998 delay memorandum, the Show Cause Authority found cause to question Lt. Barnes’ retention in the Navy. Lt. Barnes was required and did show cause why he should be retained in the Navy before a Board of Inquiry. “Cause” to believe he was. mentally, physically, morally, or professionally unqualified to perform the duties of the higher rank is a different issue. Citing MILPERSMAN 3410100.2.b.(2), the government argues that an administrative decision had to be made about whether or not Lt. Barnes’ misconduct warranted a promotion delay or removal from the promotion list. The administrative record cited by the government is as follows. On December 19, 1997, pursuant to requirements of the Military Personnel Manual (“MILPERSMAN”) 3410100, Lt. Barnes’ Commanding Officer at Misawa, Japan sent a report of his non-judicial punishment to the Bureau of Naval Personnel as required by MILPERSMAN 1611-010(3). The letter report included his Commanding Officer’s recommendation that he should be the last in his group to be promoted, but that his promotion not be withheld and he not be required to show cause why he should be retained. Lt. Barnes responded in a “First Endorsement” that emphasized his otherwise stellar Naval career and urged that his promotion not be delayed as recommended by his Commanding Officer. A.R. II., pp. 13-14. A" }, { "docid": "1367515", "title": "", "text": "by the constraints of the mandatory “shall” of § 624(a)(2). The court’s recognition that Lt. Barnes’ promotion was effected does not impact any substantive military promotion decision. Statutory mandates limit military discretion and constrain delays of Senate confirmed promotions. This is consistent with Law v. United States, 11 F.3d 1061 (Fed.Cir.1993), relied on by the government, which found compliance with the statutory requirements for delay of a promotion in the Coast Guard. Law’s analysis of the Coast Guard’s compliance with the delay provisions and conclusion that the delays in Lieutenant Law’s promotion complied with the statute, is consistent with the analysis applied here, albeit reaching a different conclusion. Distinguishing authority holding that the judiciary is without authority to grant a promotion, the Federal Circuit held that the Court of Federal Claims had jurisdiction to grant relief if the appointment had been effected because of improper delay — if Lt. Law’s arguments about improper delay of promotion were meritorious. “That Law’s claim fails on the merits does not negate the court’s jurisdiction.” Id., at 1065. Here the court has found Lt. Barnes arguments about improper delay meritorious. The court does not promote Lt. Barnes. The Navy’s delay accomplished his promotion. The court is not granting Lt. Barnes promotion but only recognizing that it occurred. Law, 11 F.3d at 1065. The President and Senate approved and confirmed his promotion effective April 1, 1998. Under the clear language of subsection 624(a)(2), that promotion “shall” occur unless there was compliance with the five delay provisions. Any delay must have complied with applicable statutes and regulations as well as the Navy’s determination of the duration of the delay — until all administrative and disciplinary proceedings related to his nonjudicial punishment were completed. The court concludes that the Navy failed to com ply with these limitations, and therefore, under the statute, Lt. Barnes’ promotion was effected. Accordingly, the purported removal of Lt. Barnes name from the promotion list was of no effect. The court finds Lt. Barnes was legally entitled to the promotion and is entitled to the pay that should have accompanied that accomplishment. This" }, { "docid": "1367480", "title": "", "text": "vote of 2 to 1, the Board recommended that Lt. Barnes be permitted to remain in the Navy. A.R. V, pp. 1-51. By an August 14, 1998 request, approved on August 24,1998, the March 17,1998 delay of Lt. Barnes’ promotion was ratified and extended by the Assistant Secretary of the Navy. A.R. IV, p. 12. On April 26, 1999, his name was removed from the promotion list. A.R. IV, p. 2. On March 1, 2001, he was released from active duty after twice being passed-over for promotion. On May 16, 2000, Lt. Barnes submitted an Application for Correction of Naval Records which asserted in part that his promotion occurred as a matter of law because of improper delay. S.A.R., Tabs 1 & 2. On January 11, 2001, the Board for Correction of Navy Records determined Lt. Barnes had not been promoted as a matter of law. S.A.R., Tab 6. On December 19, 2001, upon consideration of equitable factors, the Board again rejected his application. 2nd S.A.R., pp. 2-3. Legal principles As “decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments,” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973), the substance of decisions such as whether or not a particular officer should be promoted, “is frequently beyond the institutional competence of courts to review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.Cir.2002), citing Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988). In Voge the court stressed that “[j]udicial deference must be 'at its apogee’ in matters pertaining to the military and national defense.” 844 F.2d at 779, citing Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2654-55, 69 L.Ed.2d 478 (1981). See also Adkins v. United States, 68 F.3d 1317, 1322 (Fed.Cir.l995)(“the merits of a service secretary’s decision regarding military affairs are unquestionably beyond the competence of the judiciary to review.”). As the Federal Circuit recently observed, courts are reluctant to intervene in the merits of promotion decisions because of: the court’s incurable lack of knowledge of the total grist which" }, { "docid": "1367526", "title": "", "text": "for any part of the delay. If the Secretary makes such a determination, the Secretary may adjust such date of rank, effective date of pay and allowances, and position on the active-duty list as the Secretary considers appropriate under the circumstances. . Chief of Naval Personnel. . Commandant of the Marine Corps. . Secretary of the Navy. . SECNAVINST 1920.6A. . Commander, Naval Military Personnel Command. . Deputy Chief of Staff (Manpower and Reserve Affairs). . Paragraph 17a provides: a. SECNAV may remove the name of any officer from a promotion list to any grade below 0-7. CHNAVPERS or CMC, as appropriate, may submit requests for such action to SECNAV. In the case of officers on a promotion list for the grades 0-7 and above. CHNAVPERS or CMC, as appropriate, shall provide a request for removal action to the President via SECDEF to SECNAV for signature. . Rolader's motion for surmnaiy judgment was granted. Following a stipulation, judgment was entered that promoted plaintiff, corrected his military records, awarded him back pay and allowances, and declared that he would receive retired pay commensurate with the grade of colonel beginning March 1, 1999. . The Commanding Officer wrote: LT Barnes is on the current selection list for promotion to Lieutenant Commander and is expected to be promoted in approximately June 1998. However, the conduct that resulted in this mast is not the conduct expected of a Lieutenant Commander. Accordingly, per reference (a), I most strongly recommend that his promotion be delayed such that he will be the last to be promoted in his year group. I believe that LT Barnes has the potential to be a strong, positive asset for the Navy. Therefore, I do not recommend that his promotion be withheld, nor do I recommend that he be required to show cause for retention. A.R. II, p. 15. . 10 U.S.C. § 1182(d)(1) provides: \"If a board of inquiry determines that the officer has established that he should be retained on active duty, the officer’s case is closed.\" . Although the government posits this argument in support of its assertion that" }, { "docid": "1367516", "title": "", "text": "the court has found Lt. Barnes arguments about improper delay meritorious. The court does not promote Lt. Barnes. The Navy’s delay accomplished his promotion. The court is not granting Lt. Barnes promotion but only recognizing that it occurred. Law, 11 F.3d at 1065. The President and Senate approved and confirmed his promotion effective April 1, 1998. Under the clear language of subsection 624(a)(2), that promotion “shall” occur unless there was compliance with the five delay provisions. Any delay must have complied with applicable statutes and regulations as well as the Navy’s determination of the duration of the delay — until all administrative and disciplinary proceedings related to his nonjudicial punishment were completed. The court concludes that the Navy failed to com ply with these limitations, and therefore, under the statute, Lt. Barnes’ promotion was effected. Accordingly, the purported removal of Lt. Barnes name from the promotion list was of no effect. The court finds Lt. Barnes was legally entitled to the promotion and is entitled to the pay that should have accompanied that accomplishment. This result necessarily overturns his release from active duty as he has not been passed over for promotion in his correct rank to which he was promoted. Decisions of Board of Correction of Naval Records On May 16, 2000, Lt. Barnes submitted an Application for Correction of Naval Records. On May 17, 2000, the court stayed this litigation pending the Board’s decision. On January 11, 2001, the Board denied the Application. In his application Lt. Barnes argued that he was promoted as a matter of law and, alternatively, that relief should be granted to correct an error or injustice as had been done in similar cases, particularly In re Robinson, BCNR No.11165-90, Oct. 30, 1990. The Board determined that Lt. Barnes was not promoted as a matter of law; equitable arguments were not addressed. On November 26, 2001, the Assistant General Counsel (Manpower and Reserve Affairs) requested the Board “provide a report that addresses whether petitioner is entitled to be promoted in order to correct an error or injustice,” because “the [January 11, 2001] decision provides" }, { "docid": "1367490", "title": "", "text": "statutory bases for a promotion delay, the convening of a board of officers to review his record. 10 U.S.C. § 624(d)(1)(C). Even if the March 19,1998 cause determination could be considered a convening of the board, it was two days after the delay memorandum and could not have satisfied that statutory grounds. See Stringer v. United States, 117 Ct.Cl. 30, 90 F.Supp. 375, 379 (1950)(government required to strictly comply with statutory time requirements). Furthermore, the BOI’s decision on May 27,1998 to retain Lt. Barnes was final, thus terminating that administrative procedure. Accordingly, even if the Board proceedings were pending at the time of the March 17, 1998 delay memorandum, those proceedings were completed on May 27,1998, thus terminating the Navy’s self-imposed conditions on the delay. The government does not point to evidence in the record of an ongoing investigation to determine whether any disciplinary action should be taken against Lt. Barnes, or any pending criminal charges against him, two of the other five types of permissible grounds to delay a promotion under 10 U.S.C. § 624(d). That leaves the fifth and final grounds statutory grounds for delaying a promotion— cause to believe the officer is unqualified to perform the duties of the higher rank. 10 U.S.C. § 624(d)(2). The government asserts that the statement in the March 17, 1998 memorandum that Lt. Barnes may not be qualified for promotion satisfies the statute. Secondly, the government argues that questions about his qualification for promotion were outstanding — thus extending his promotion delay until such a determination was made. To reiterate, subsection 624(d)(2) provides: [u]nder regulations prescribed by the Secretary concerned, the appointment of an officer under this section may also be delayed in any case in which there is cause to believe that the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion. SECNAVINST 1420.1A, 1123(a) echoes the statutory language but does not add any procedural guidelines: “[promotion may be delayed under this instruction if:... (5) There is cause to believe that the officer is mentally, physically, morally," }, { "docid": "1367491", "title": "", "text": "624(d). That leaves the fifth and final grounds statutory grounds for delaying a promotion— cause to believe the officer is unqualified to perform the duties of the higher rank. 10 U.S.C. § 624(d)(2). The government asserts that the statement in the March 17, 1998 memorandum that Lt. Barnes may not be qualified for promotion satisfies the statute. Secondly, the government argues that questions about his qualification for promotion were outstanding — thus extending his promotion delay until such a determination was made. To reiterate, subsection 624(d)(2) provides: [u]nder regulations prescribed by the Secretary concerned, the appointment of an officer under this section may also be delayed in any case in which there is cause to believe that the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion. SECNAVINST 1420.1A, 1123(a) echoes the statutory language but does not add any procedural guidelines: “[promotion may be delayed under this instruction if:... (5) There is cause to believe that the officer is mentally, physically, morally, or professionally unqualified.” The body of the March 17, 1998 memorandum to Lt. Barnes states that “[p]er reference (b)[the Navy regulation], you may not be qualified for permanent promotion.” While posing a question, this query does not answer that question and is not a finding of cause to believe Lt. Barnes was not mentally, physically, morally, or professionally qualified to perform the duties of the higher rank, neither does the memorandum refer to any cause finding. A question about Lt. Barnes’ qualification for permanent promotion is not an administrative or disciplinary action nor a finding of cause to believe he was not qualified. In addition to the December 19, 1997 report of Lt. Barnes’ nonjudicial punishment, the header of the March 17, 1998 memorandum references only one other item, Navy regulation — SECNAVINST 1420.1A- and the government does not contend that Naval regulation contains any procedure for making such a cause determination. Rather, the government takes the position that memorandum’s equivocation about Lt. Barnes’ qualification for permanent promotion, and the several other record statements about" }, { "docid": "1367513", "title": "", "text": "to the Secretary concerned in response to the action taken” in the August 14, 1998 memorandum as required by statute. 10 U.S.C. § 624(d)(4). Furthermore, SECNAVINST 1420.1A 1123(b)(2) mandates that “each justification for delay to SECNAV must include ... [a] copy of the notification to the officer.” No notification was given to Lt. Barnes. Removal On September 8, 1998, the Chief of Naval Personnel, referring to SECNAVINST. 1420.1A, notified Lt. Barnes that his name may be removed from the Fiscal Year 98 Active Lieutenant Commander Line Promotion List. He was afforded an opportunity to submit a statement within ten days. A.R. IV, p. 10. Lt. Barnes submitted favorable statements from his commander and others. On March 22, 1999, Chief of Naval Personnel recommended that his name be removed from the promotion list. A.R. IV, p. 2. That recommendation was approved on April 26, 1999 by Secretary Richard Danzig. A.R. IV, p.2. Removal from a promotion list is governed by SECNAVINST 1123(e): e. Removal from the Promotion List. If during a delay of promotion, it is determined that removal from the promotion list is appropriate, removal action under paragraph 17a may be initiated. Although removal action is contemplated, requests for delay extensions as provided in paragraph 23d shall be submitted to SECNAV as necessary until the officer’s name is removed from the promotion list. Paragraph 17a provides: SECNAV may remove the name of any officer from a promotion list to any grade below 0-7. CHNAVPERS or CMC, as appropriate, may submit requests for such action to SEC-NAV. The government’s position is that the name of the officer can be removed from a promotion list at any time prior to appointment. That position conflicts with the above regulatory constraints that removal action be initiated during a period of promotion delay. Even if the promotion was delayed without compliance with statutory procedure, Lt. Barnes cannot be appointed Lt. Commander — only the President can do that, the government argues. Indeed, the government’s position in this case is that the President’s authority to remove a name from a promotion list is absolute and unaffected" }, { "docid": "1367517", "title": "", "text": "result necessarily overturns his release from active duty as he has not been passed over for promotion in his correct rank to which he was promoted. Decisions of Board of Correction of Naval Records On May 16, 2000, Lt. Barnes submitted an Application for Correction of Naval Records. On May 17, 2000, the court stayed this litigation pending the Board’s decision. On January 11, 2001, the Board denied the Application. In his application Lt. Barnes argued that he was promoted as a matter of law and, alternatively, that relief should be granted to correct an error or injustice as had been done in similar cases, particularly In re Robinson, BCNR No.11165-90, Oct. 30, 1990. The Board determined that Lt. Barnes was not promoted as a matter of law; equitable arguments were not addressed. On November 26, 2001, the Assistant General Counsel (Manpower and Reserve Affairs) requested the Board “provide a report that addresses whether petitioner is entitled to be promoted in order to correct an error or injustice,” because “the [January 11, 2001] decision provides no detailed explanation regarding petitioner’s entitlement to purely equitable relief.” Second Supp. A.R. at 2-3. On December 4, 2001, the court continued its stay pending the Board’s reconsideration. On December 19, 2001, the Board found insufficient evidence of probable material error or injustice. In concluding that equitable relief was not warranted, the Board concluded that Lt. Barnes “came to the Board with unclean hands, noting the misconduct which resulted in the delay of [his] promotion and [his] ultimate removal from the promotion list.” Second Supp. A.R. at 2. Distinguishing Robinson, the Board noted that relief was granted there not on equitable grounds but because “no Secretarial authority for the delay of [Robinson’s] promotion had been obtained when his projected promotion date arrived, his promotion should have been effected on that date in accordance with title 10 of the United States Code, section 624(a)(2).” Id. The standard of review of a decision of a corrections board is whether the decision is arbitrary, capricious, unsupported by substantial evidence or contrary to law. Chappell v. Wallace, 462 U.S." }, { "docid": "1367497", "title": "", "text": "Proceeding which was completed on May 27,1998, thus any period of delay terminated. Moreover, under the government’s reasoning, “cause” here was an extension of the nonjudicial proceedings and the Board of Inquiry. The court disagrees. “Cause” under subsection (d)(2) is a separate and additional statutory grounds for the delay. “[T]he appointment of an officer may also be delayed” if there is cause to believe that officer is not qualified for the promotion. The word “also” means something. Recharacterization of the other four statutory grounds for delay does not create a new statutory basis, at least without a separate administrative or disciplinary proceeding. The government’s citations to the administrative record do not support its conclusion that any administrative or disciplinary action to determine such “cause” was either initiated, such as to validate the March 17, 1998 memorandum, or existed yet was uncompleted, to extend the promotion delay under the Navy’s self-imposed terms. RCFC 56.1. The court concludes that (1) there was no finding of cause to believe that Lt. Barnes was mentally, physically, morally, or professionally unqualified to perform the duties of the higher rank which could justify the delay in the first instance; and alternatively, (2) there was no ongoing related administrative or disciplinary proceedings concerning cause, the temporal parameters of the delay of Lt. Barnes promotion. The court finds that none of the five conditions for promotion delay in 10 U.S.C. § 624(d)(1) or 624(d)(2) existed as of March 17, 1998. As a result, subsection 624(a)(2) mandates that the officer “shall” be promoted. See generally Scarborough v. Principi, 319 F.3d 1346, 1349 (Fed.Cir.2003)(applying as mandatory the “shall” requirement that attorney fee applications under the Equal Access of Justice Act be submitted within thirty days). See also Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1376 (Fed.Cir.2002)(applying as mandatory statutory “shall”). The court also finds that all administrative or disciplinary action related to Lt. Barnes’ nonjudicial punishment were completed on May 27,1998, thus terminating the period of any promotion delay under the Navy’s terms. The provisions of the statute and the terms of the Navy’s delay having expired, Lt." }, { "docid": "1367486", "title": "", "text": "promoted by operation of law: There being insufficient proof that the Air Force complied with its own regulations in initiating a recommendation of removal, we hold that the delay to plaintiffs promotion expired on June 30, 1993. Because plaintiffs name was not removed from the promotions list before that date, he was promoted by operation of law. 42 Fed.Cl. at 787 (emphasis supplied). See also Voge v. United States, 844 F.2d 776, 782 (Fed.Cir.1988)(“absent a statute or regulation entitling a service member to promotion as a matter of law, the Claims Court [now the Court of Claims] has no authority to entertain this claim [for promotion as a matter of law].”). Summary of procedural errors alleged Lt. Barnes alleges there was no statutory basis for the March 17, 1998 delay memorandum and that, alternatively, the period of delay specified therein (until the completion of all related administrative and disciplinary proceedings) expired. He also argues he was not given notification of a delay in his promotion prior to April 1, 1998, the effective date of his promotion. Procedural errors are also alleged in the August 24, 1998 extension of the initial promotion delay and in the removal of his name from the promotion list which he asserts was after the expiration of the delay. Validity and expiration of term of promotion delay Lt. Barnes’ promotion was confirmed by the Senate on November 8, 1997, with a projected effective date of April 1, 1998. A memorandum to Lt. Barnes from the Chief of Naval Personnel dated March 17,1998 (15 days prior to the date on which Lt. Barnes was projected to be promoted) cited his nonjudicial punishment for conduct unbecoming an officer, and informed him that his April 1, 1998 promotion to lieutenant commander was delayed “until all related administrative or disciplinary action is completed.” A.R. IV, p. 39. The memorandum also stated he may not be qualified for promotion. Subj: DELAY OF YOUR PERMANENT PROMOTION TO LIEUTENANT COMMANDER Ref: (a) CO NSGA Misawa ltr 1611 Ser NOO/01647 of 19 Dec 97 w/ends (b) SECNAVINST 1420.1A 1. Reference (a) reported you received" }, { "docid": "1367499", "title": "", "text": "Barnes was promoted by operation of law under subsection 624(a)(2). The court is not impinging on military discretion on the merits of the decision to remove Lt. Barnes’ name from the Senate-approved promotion list. Rather, the court is following statutory mandates, that like regulations, limit the government’s discretion. The court is not ordering the pro motion, but recognizing that the promotion occurred. Law v. United States, 11 F.3d 1061, 1065 (Fed.Cir.1993). Ratification by Secretary of Navy Although not raised by plaintiff, the March 17, 1998 purported delay of Lt. Barnes’ promotion was not ratified until August 24,1998 by Bernard Rostker, Assistant Secretary of the Navy (Manpower and Reserve Affairs). Navy regulation requires a delay of promotion be ratified by the Secretary of the Navy “as soon as practicable.” 23. Delay of Promotion a. Criteria for Promotion Delay. CHNAVPERS or CMC, as appropriate, or a member’s commanding officer, may delay the appointment of an officer selected for promotion. If the appointment is delayed, the delaying officer shall, as soon as practicable, forward the information required by paragraph 23b to SECNAV for ratification. Promotion may be delayed under this instruction if: b. Command Requests for Delay (1) Commanding officers who consider delay of an officer’s promotion warranted and delay an officer’s promotion, shall submit justification for the delay to SECNAV via, CHNAVPERS (NMPC-82)(copy to COMNAVMILPERSCOM (NMPC-22)), or CMC (MMPR-1) as appropriate, within 10 days of knowledge of the circumstances warranting the delay, or as soon thereafter as practicable. (2) Each justification for delay to SEC-NAV must include the following documents: (a) A copy of the notification to the officer and; (b) A statement by the officer. If the officer declines to make a statement, the officer concerned shall submit a signed statement to that effect; (c) Supporting rationale for delay from the officer’s commanding officer based on his or her knowledge of the officer involved; and (d) A recommendation by CHNAVPERS or DC/s (M & RA), as appropriate. SECNAV INSTRUCTION 1420.1A, 1123. The government would be hard-pressed to argue that it was not practicable to obtain ratification in less than five months;" }, { "docid": "1367519", "title": "", "text": "296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Haselrig v. United States, 333 F.3d 1354, 1356 (Fed.Cir.2003); Martinez v. United States, 333 F.3d 1295, 1313-14 (Fed.Cir.2003); Porter v. United States, 163 F.3d 1304, 1312 (Fed.Cir.1998). Lt. Barnes argues the Board’s decisions were arbitrary, capricious, unsupported by substantial evidence and contrary to law because of legal errors discussed above, and because of the Board’s invocation of the doctrine of unclean hands. He asserts the Board granted equitable relief to individuals who engaged in much more egregious behavior; to impose a higher standard or eliminate a previous standard without warning would be arbitrary and capricious. Plaintiff cites two previous cases where the Board made legal and equitable determinations inconsistent with those applied to Lt. Barnes. In one (No. 6971-87; July 22, 1987) the Board concluded that the officer’s promotion delay had not been approved by the Secretary as required by Navy regulation. Recognizing that his promotion occurred because the Secretary of the Navy had not approved of the promotion delay before the scheduled promotion date (an infirmity in Lt. Barnes’ purported delay), the Board concluded that: since no legally valid delay had been effected, Title 10 U.S.C. 624(a)(2) made it mandatory that petitioner, who was an officer on a promotion list for his competitive category, be promoted to the next higher grade when additional officers in that grade and competitive category were need ed____ To avoid a requirement to effect Petitioner’s promotion, all that would have been needed would have been to obtain a summary Secretarial review and approval of a delay request before the date the promotion was scheduled. However, since this was not done, the Board finds that Petitioner’s promotion should have been effected when scheduled. Plaintiffs Cross-Motion, App. unnumbered 9. The Board recommended his promotion be recognized with appropriate record correction despite that fact that following Senate confirmation of his promotion, there was investigation into serious allegations which led to a Board of Inquiry. The Board of Inquiry found insufficient evidence to support the allegations, but concluded that while the officer should be retained in the Navy," } ]

[ { "docid": "9457934", "title": "", "text": "693, 13 L.Ed.2d 573 (1965). See Fed.R.Civ.P. 43(a) (which controlled admission of evidence in civil trials at the time of the ruling below). Bearing on our problem are important statements from several leading United States Supreme Court opinions. In the Elkins case Justice Stewart said: In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). In the Rios case Justice Stewart said: Moreover, the Court of Appeals gave no consideration to the question of the legality of the state search and seizure, relying as it did upon the silver platter doctrine and rejecting the petitioner’s contention that the state court’s determination of illegality precluded the federal trial court from making an independent inquiry into the matter. With the case in such a posture, we have concluded that the interests of justice will best be served by remanding the case to the District Court. There, free from the entanglement of others issues that have now become irrelevant, the lawfulness of the policemen’s conduct can be determined in accord with the basic principles governing the validity of searches and seizures by federal officers under the Fourth Amendment. Rios v. United States, 364 U.S. 253, 260-61, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960). In the Preston case Justice Black said: The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. Elkins v. United States, 364 U.S. 206 [80 S.Ct. 1437, 4 L.Ed.2d 1669] (1960). Preston v. United States, 376 U.S. 364, 366, 84 S.Ct." } ]

[ { "docid": "16514130", "title": "", "text": "It is not this Court’s role to engraft a “good faith” exception onto Texas jurisprudence. Thus in this case, where an arrest was unlawful under Texas statutes, the game warden’s good or bad faith can have no bearing on our decision to exclude the illegally obtained evidence. 676 F.2d at 1094 (footnotes omitted). . In holding that the legality of an arrest for a federal crime by state officers is determined by state law, Garcia relied on United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). See also United States v. Ibie, 630 F.2d 389,392-93 (5th Cir.1980) (citing Di Re); United States v. Bowdach, 561 F.2d 1160, 1168 (5th Cir.1977) (same). Nevertheless, the Tenth Circuit has held that Di Re “was rejected, by implication, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (I960).” United States v. Miller, 452 F.2d 731, 733 (10th Cir.1971). In Elkins, the Court stated: In determining whether there has been an unreasonable search and seizure by state officers [in a federal prosecution], a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state may have countenanced, nor diminished by what another may have colorably suppressed. Id. 364 U.S. at 224, 80 S.Ct. at 1447. We note that a federal test of legality is particularly apt when, as here, the state officers’ probable cause to arrest stemmed from a federal warrant issued pursuant to a grand jury indictment. Because the probable cause was thus found by the grand jury, a reference to state law is unnecessary. . We do not face here the fit of Williams to an arrest or search by officers holding a warrant found deficient for lack of probable cause. We leave for later the question of whether a good faith proviso to the exclusionary rule ought ever to tolerate an arrest or seizure without probable cause measured" }, { "docid": "6330284", "title": "", "text": "proceeding was granted. The District Attorney thereafter filed a motion to dismiss the indictment, which was granted. Fossler was subsequently charged with the federal offenses alleged in the instant indictment. He filed a motion to suppress evidence and a motion to dismiss the indictment on the basis of Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), but both motions were denied. The trial and conviction which followed led to this appeal. I. In arguing that the District Court erroneously denied his motion to suppress evidence, Fossler points out that the State Judge suppressed the evidence and concludes that he did so because Fossler’s initial arrest by the state officer was unlawful and the subsequent search was therefore illegal. Thus, he argues, the rejection of the “silver platter” doctrine in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), prohibits the use of the same excluded evidence in a subsequent trial. The holding of Elkins v. United States is not, however, wholly consistent with Fossler’s argument: [W]e hold that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial. In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. 364 U.S. at 223-24, 80 S.Ct. at 224 (footnote omitted). The District Court was thus correct in making an independent inquiry and determination regarding the suppression of evidence. Accord, United States v. Garrett, 565 F.2d 1065, 1068 (9th Cir. 1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1620, 56 L.Ed.2d 67 (1978), cert. denied sub nom., Morgan v." }, { "docid": "23113102", "title": "", "text": "amended and no longer requires that an arrest be agreeable to the usual state process. See 18 U.S.C. § 3041. Because the Di Re rule was based on a statute, not the Constitution, and that statute no longer retains the principle relied on by the Di Re Court, the Court’s statements about using state law to determine the validity of the arrest are no longer applicable. Third, any suggestion in Di Re that a federal court must use the state law of arrest to determine the applicability of the exclusionary rule has not survived subsequent decisions of the Supreme Court. In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Supreme Court considered the validity of the “silver platter doctrine,” which allowed evidence that had been illegally seized by state authorities in violation of the Fourth Amendment nevertheless to be admitted in federal criminal trials. In rejecting this doctrine, the Supreme Court concluded that “[i]n determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out.” Id. at 223-24, 80 S.Ct. at 1447. The Supreme Court seemingly rejected the proposition that state law controlled the admissibility of evidence in a federal criminal trial, holding that “[t]he test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Id. The Supreme Court recently reaffirmed this position in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). The Court rejected the defendant’s argument “that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law.” Id. at 43, 108 S.Ct. at 1630. Recognizing that “[individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct" }, { "docid": "14232355", "title": "", "text": "enunciated in People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975). He then held that applicable federal standards would lead to the same result. However, the Supreme Court has said: In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. Elkins v. United States, 364 U.S. 206, 224 [80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669] (1960). Accord, U. S. v. Burke, 517 F.2d 377, 382 (2d Cir. 1975); U. S. v. Dudek, 530 F.2d 684 (6th Cir. 1976). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first considered the question whether something less than “probable cause” could justify a stop and frisk by a police officer. The Court decided that, although a simple stop for questioning was a “seizure” under the Fourth Amendment, an officer could stop and frisk a person on the street without a search warrant, but clear standards were described to regulate this conduct. The standards there set forth are applicable here. The Court said: [I]n determining whether the seizure and search were “unreasonable” our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. . And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion . And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution" }, { "docid": "14232354", "title": "", "text": "624 (8th Cir. 1971). The question which remains is the narrow one: whether the facts in this instance are enough to create a “reasonable suspicion” in the officer’s mind that a crime was, is being, or is about to be committed; has the presumption against warrantless searches and seizures been overcome? Magda was charged with state crimes relating to the gun and the marijuana cigarette. In connection with the state prosecu tion, a suppression hearing was held in Criminal Court of the City of New York before Judge Alfred H. Kleiman on November 14, 1975. Judge Kleiman ruled that, under controlling New York standards, the evidence uncovered in Alesi’s search should be suppressed. That prosecution was subsequently discontinued. Although I agree with the conclusions reached by Judge Carter’s opinion below, I must disagree that the District Judge had a choice as to whether to apply New York standards or federal standards to Officer Alesi’s conduct. Judge Carter first concluded that the governing standard should be that of the Court of Appeals of New York as enunciated in People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975). He then held that applicable federal standards would lead to the same result. However, the Supreme Court has said: In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. Elkins v. United States, 364 U.S. 206, 224 [80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669] (1960). Accord, U. S. v. Burke, 517 F.2d 377, 382 (2d Cir. 1975); U. S. v. Dudek, 530 F.2d 684 (6th Cir. 1976). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first considered the question whether something less than “probable cause” could justify a stop" }, { "docid": "15897949", "title": "", "text": "based on the oft-quoted dictum of Elkins v. United States, 364 U.S. 206, 223-224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960), as follows: “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” See United States v. Alberty, 448 F.2d 706, 708 (10th Cir. 1971); United States v. Sims, 450 F.2d 261, 262-263 (4th Cir. 1971); United States v. Melancon, 462 F.2d 82, 91-92 (5th Cir. 1972). However, I see no inconsistency between Di Re, supra, as followed in this circuit, and Elkins, which held “that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” 364 U.S. at 223, 80 S.Ct. at 1447. It would appear that the Elkins dictum concerns the second prong of the Di Re test, i. e., whether federal constitutional standards were violated by the state officers. Notably, the circuits which depart from this court’s interpretation of Di Re seem to reason that Elkins somehow “vitiated” the holding of Di Re. See Alberty, supra, 448 F.2d at 708. However, United States v. Watson, 423 U.S. 411, 420 n.8, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), and Ker v. California, 374 U.S. 23, 37—41 (opinion of Clark, J.), 62, 83 S.Ct. 1623, 10 L.Ed.2d 726 (opinion of Brennan, J.) (1963), strongly suggest otherwise. . See United States v. Watson, 423 U.S. 411, 420 n.8, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Ker v. California, 374 U.S. 23, 37 — 41 (opinion of Clark, J.), 62, 83 S.Ct. 1623, 10 L.Ed.2d 726 (opinion of Brennan, J.) (1963); Miller v. United States, 357 U.S." }, { "docid": "14232356", "title": "", "text": "and frisk by a police officer. The Court decided that, although a simple stop for questioning was a “seizure” under the Fourth Amendment, an officer could stop and frisk a person on the street without a search warrant, but clear standards were described to regulate this conduct. The standards there set forth are applicable here. The Court said: [I]n determining whether the seizure and search were “unreasonable” our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. . And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion . And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? The Court’s standards in Terry are flexible enough to cover various degrees of police intrusions, since they require that the actual intrusion be in proportion to the observations which prompted that intrusion. The unique aspect of the decision was that an officer could approach a person for investigative purposes on facts which would not constitute probable cause for an arrest or a search. This showing need be less if the stop is merely for questioning, more if the officer seeks to justify a frisk. The precise contours of the rule were delimited by later cases. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) holds that the Terry stop and frisk standard is satisfied not on the basis of personal observations (as in Terry) but on the word of an informer. Not until the Supreme Court decided Unit ed States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), did it consider the isolated question of what will justify" }, { "docid": "14734611", "title": "", "text": "court for an order allowing the destruction, and for the defendants to have received notice of the impending destruction and to have had access to the seized evidence prior to the destruction. Such a procedure ensures that defendants are not prejudiced by the government’s handling of evidence. See United States v. Heiden, 508 F.2d 898 (9th Cir. 1974) (concurring opinion). DONALD RUSSELL, Circuit Judge, dissenting: The defendants/appellants were plainly guilty. Unable to bribe their way out after being caught, they now ask this Court for protection and the majority would give such protection on the theory that the validity of a Terry-type stop is to be determined by the stop-watch and not by the totality of the circumstances of the stop. I cannot agree and accordingly dissent. My reasons for such disagreement are: I. The Fourth Amendment preserves “[t]he right of the people to be secure . . . against unreasonable searches and seizures . . . . ” The amendment does not prohibit all searches and seizures, only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). In Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), the Supreme Court defined “seizure”: “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” As a general rule “the police must, whenever practicable, obtain judicial approval of searches and seizures through the warrant procedure ....”, id. at 20, 88 S.Ct. at 1879 (citation omitted), “[b]ut we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat- — which historically has not been, and as a practical matter could not be, subject to the warrant procedure.” Id. In determining the reasonableness of the actions of the police, the Terry Court set forth a two part test for stopping a citizen: “Whether the officer’s action was justified at its inception, and whether it was reasonably related in scope" }, { "docid": "1741502", "title": "", "text": "federal officers, could be admitted against a defendant in a federal criminal trial. That doctrine was later rejected by the Supreme Court in the case of Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). There the Court held that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated a defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment, is inadmissible over the defendant’s timely objection in a federal criminal trial, even though there was no participation by federal officers in the search and seizure. In Elkins the Court stated: “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colombly suppressed.” (Italics supplied). 364 U.S. at 223-224; 80 S.Ct. at 1447-1448. And in Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), the Court remanded to the trial court for determination of the lawfulness of state officers’ conduct in accordance with basic principles governing the validity of searches and seizures by federal officers under the Fourth Amendment. There, in a state prosecution, the evidence had been suppressed on the ground that it had been unlawfully seized. The Elkins and Rios decisions, supra, clearly vitiated the Court’s holding in United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) that, in the absence of an applicable federal statute, the law of the state where an arrest without a warrant takes place determines its validity. Appellee relies upon this court’s decision in Sumrall v. United States, 382 F. 2d 651 (10th Cir. 1967), cert. denied 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968). There we held that state law controls the authority of a" }, { "docid": "12039182", "title": "", "text": "Elkins v. United States, supra, to our facts. In that case the United States Supreme Court, exercising its supervisory power over the administration of criminal justice in the federal courts, announced the standard to be used in determining whether evidence secured in a state conducted search may be used in a federal criminal trial. Mr. Justice Stewart stated: “For these reasons we hold that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial. In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” 364 U.S. at 223-224, 80 S.Ct. at 1447. (emphasis supplied). The exact problem facing this court as a consequence of the Elkins rule was observed by Mr. Justice Frankfurter m his dissent in Elkins when he said: “Under the rule the Court today announces, the federal trial court, whenever state-seized evidence is challenged, must decide the wholly hypothetical question whether that evidence was ‘obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment.’ Irrelevant are violations of state law, or hypothetical violations of federal statutes, had the search been ‘conducted by federal officers.’” (emphasis supplied). 364 U.S. at 243-244, 80 S.Ct. at 1459. The rule of the majority in Elkins was applied in Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960) and has been quoted with apparent approval by a unanimous court in Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). These" }, { "docid": "5332498", "title": "", "text": "court must make an independent inquiry, whether or not there has been such an inquiry by a state court and irrespective of how such an inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-224, 80 S.Ct. 1437, at 1447, 4 L.Ed.2d 1669 (1960). The independent inquiry begins with the preliminary question of whether or not the objecting party is, under Rule 41(e) of the Federal Rules of Criminal Procedure (“FRCrimP”), a “person aggrieved” so as to have the necessary standing to present his motions to suppress. Boyle v. United States, 395 F.2d 413, 415-416 (9th Cir. 1968), cert. denied, 393 U.S. 1089, 89 S.Ct. 861, 21 L.Ed.2d 782 (1969). Therefore, despite the potentially more liberal California rule on the issue of standing, it is held here that the matter is governed in the federal courts by Rule 41 of the FRCrimP, and hence by federal law, even though the evidence objected to was seized by state agents and subsequently handed over to federal officers. The defendants cite three cases decided by this court to support their argument, i. e., United States v. Solomon, 528 F.2d 88 (9th Cir. 1975); United States v. Lovenguth, 514 F.2d 96 (9th Cir. 1975); and United States v. Walling, 486 F.2d 229 (9th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974). However, those cases do not consider the issue of standing, but rather establish the proposition that the propriety of a stop by a state officer is subject to review under the stan dards of both state and federal law. While it could perhaps be argued that the failure to apply the more liberal state rule as to standing would encourage state officials to carry out searches which would be contrary to the law of their own jurisdiction, that possibility is too remote to warrant a change in the rule as to the applicable law. Cf. United States v." }, { "docid": "3372938", "title": "", "text": "had declared the payments from Barkley in his federal income tax returns, but had probably forgotten to report them in his California state income tax returns. Testimony that he had so stated was admitted, over objection, as impeachment of appellant’s trial testimony that the payments from Barkley represented loans and not income. Before he was indicted by the federal grand jury, appellant, along with Barkley, had been charged and tried in a criminal action in the California courts. In that action, appellant’s motion to suppress the documentary evidence which had been seized by the state officers pursuant to the search warrants was granted by the state court, and the state charges against him were dismissed. On the first issue before us, we hold that the District Court properly received the incriminating canceled checks into evidence. That the state court suppressed the evidence is not controlling. “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). Our “independent inquiry” terminates with the answer to a preliminary question, whether or not the appellant was, under Fed.R.Crim.P. 41(e), a “person aggrieved” so that he had the necessary standing to present his motions to suppress. “In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished, from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960) (emphasis added). Here, it is very clear" }, { "docid": "2960574", "title": "", "text": "presence of the officers; (b) the officers did . not possess arrest warrants; (e) under the law of Oklahoma the actions of the police officers in bringing the suspect vehicles to stops and thus under their control constituted an illegal arrest; and (d) under these circumstances Oklahoma law forbids the admission in evidence of incriminating objects seized incident to an unlawful arrest. Under the facts of these cases the state police officers would have been derelict in their duty to the public if they had not done exactly what they did. Miller argues that United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) control here. These cases stand for the rules that: (a) in the absence of an applicable Federal statute the law of the state where an arrest without warrant takes place determines its validity; and (b) search and seizure cannot be justified on any cause less than that probable cause required of the magistrate who issues arrest or search warrants. As noted in Alberty, supra, we believe that certain decisions, culminating with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), have vitiated these holdings. We shall review these decisions. The Di Re rule was rejected, by implication, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) . In Elkins the Court stated: “In determining whether there has been an unreasonable search and seizure by state officers (in a federal prosecution), a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.\" 364 U.S. at 223-224, 80 S.Ct. at 1447. (Emphasis ours). Since Mapp v. Ohio," }, { "docid": "5484392", "title": "", "text": "Mapp case, whereas authors from States in which little State activity has been undertaken to define the permissible areas of search and seizure have been particularly outspoken in their expansive interpretation of Mapp. It would appear that a State’s own prior decisions tend to color one’s reaction to decisions of the United States Supreme Court. It cannot fairly be said, however, that the Mapp decision stands in a vacuum, with reference to an apparent policy of the Supreme Court to establish a na tional search and seizure law. Indeed, that Court, in Elkins v. United States, 364 U.S. 206, at 223-224, 80 S.Ct. 1437, at 1447, 4 L.Ed.2d 1669, specifically-stated that, “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor •diminished by what another may have colorably suppressed.” Although the Elkins case dealt with the use of illegally obtained evidence in a Federal proceeding, where the evidence had been acquired by the actions of a State officer, the decision in Mapp seems to have abolished whatever significance such a distinction might have. It is clear that mere probable cause for belief that certain articles subject to seizure are in a dwelling cannot, of itself, justify a search without a warrant (Chapman v. United States, 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828; Jones v. United States, 357 U.S. 493, 497, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; and Catalanotte v. United States, 6 Cir., 208 F.2d 264). Since the officers in this situation did not have a warrant, the only possible basis for their search of the premises at 309 must have been as an incident of the arrest of Anniece and petitioner. Nothing which would cause this case to come" }, { "docid": "1741501", "title": "", "text": "not with the more restrictive laws of the State of Oklahoma. The Government cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in support of its argument that the actions of the two Idabel police officers were justified under the “stop and frisk” rule which allows police to bring a person under physical control in a manner not amounting to a technical arrest. The Government argues that in view of the telephone complaints tied to the general description of Alberty’s vehicle, and considering the time and circumstances of observance of the Alberty vehicle by the two Oklahoma police officers, they were justified in stopping Al-berty’s vehicle and in conducting an investigation which constituted less than a formal arrest premised on probable cause. The Government refers to the so-called “silver platter” doctrine first announced in Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). There the Court held that articles obtained as a result of an unreasonable search and seizure by state officers, without involvement of federal officers, could be admitted against a defendant in a federal criminal trial. That doctrine was later rejected by the Supreme Court in the case of Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). There the Court held that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated a defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment, is inadmissible over the defendant’s timely objection in a federal criminal trial, even though there was no participation by federal officers in the search and seizure. In Elkins the Court stated: “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have" }, { "docid": "23525535", "title": "", "text": "4th Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal government and its agencies. Boyd v. Case, 116 U.S. 616, 29 L.Ed. 746, 6 Sup.Ct.Rep. 524, and see Twining v. New Jersey, 211 U.S. 78, 53 L.Ed. 97, 29 Sup.Ct.Rep. 14.” 232 U.S. at 398, 34 S.Ct. at 346. This immunity from exclusion gained the label “silver platter” doctrine following Justice Frankfurter’s opinion in Lustig v. United States, 1949, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819: “The crux of that doctrine is that a search is a search by a Federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.” 338 U.S. at 78-79, 69 S.Ct. at 1374. In Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the Supreme Court overturned the “silver platter” doctrine and held that evidence obtained as a result of an unconstitutional arrest by state officers must be excluded from federal trials, regardless of whether federal agents participated in the arrest. The Court’s extensive and perceptive analysis concluded with the following pronouncement: “For these reasons we hold that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” 364 U.S. at 223-224, 80 S.Ct. at 1447 (Emphasis added.) The Court continued: “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” 364 U.S. at 224, 80 S.Ct. at 1447. (Emphasis added.) Clearly, the Elkins" }, { "docid": "23232571", "title": "", "text": "a warrant’s validity is being examined for federal prosecutory purposes and the resulting search is “state” in character, the warrant need only satisfy federal, constitutional requirements rather than those of state law, which may involve stricter standards. Thus, even if the warrant did not comply with state law, evidence obtained from a subsequent search and seizure would not necessarily be inadmissible in a federal criminal trial. The test is whether the fourth amendment’s imperatives have been observed. (a) Particularity of the Warrant Although neither party raised the issue of the warrant’s particularity, we deem it necessary to comment briefly on this point since a state court previously held the warrant to be constitutionally defective for its failure adequately to specify the place to be searched. While it is not entirely clear whether the state court relied on federal or state law as authority for its holding, we are not, in any event, bound by its decision. “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have color-ably suppressed.” Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). Consonant with the fourth amendment’s dictate that warrants particularly describe the place to be searched, a search warrant directed against an apartment house will usually be held invalid if it fails to describe the particular apartment to be searched with sufficient definiteness to preclude a search of other units located in the building and occupied by innocent persons. However, “it is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). “The standard . ." }, { "docid": "7628738", "title": "", "text": "lack merit. For collateral estoppel to bar a criminal prosecution, if it were even applicable to this issue, “both adjudicatory entities must be arms of the same sovereign * * *.” United States v. Kills Plenty, 466 F.2d 240, 243 (8th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 971, 35 L.Ed.2d 278 (1973). The conviction appealed from here is a federal conviction for federal crimes. A federal court is not bound for reasons of comity by a state court’s assessment of a warrant: While it is not entirely clear whether the state court relied on federal or state law as authority for its holding [that the warrant was unconstitutional], we are not, in any event, bound by its decision. “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). United States v. Bedford, 519 F.2d 650, 654 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1120, 47 L.Ed. 323 (1976). Finally, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) was meant to accord deference to state court search and seizure determinations where a state court defendant attacked his state conviction in a federal forum in a § 2254 collateral attack. See Shane v. Iowa, 581 F.2d 727 (8th Cir. 1978). It is inapplicable in this appeal of Wedelstedt’s federal conviction. Further, we disagree with the state court that probable cause to search the warehouse was lacking and that the ensuing warrant was unconstitutional. The affidavit of agent Michael Marlin provided inter alia: On or about the 8th of December, 1974 a thaft [sic] occured [sic] in Chicago Illinois where more than 1000 8" }, { "docid": "2960575", "title": "", "text": "seizure cannot be justified on any cause less than that probable cause required of the magistrate who issues arrest or search warrants. As noted in Alberty, supra, we believe that certain decisions, culminating with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), have vitiated these holdings. We shall review these decisions. The Di Re rule was rejected, by implication, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) . In Elkins the Court stated: “In determining whether there has been an unreasonable search and seizure by state officers (in a federal prosecution), a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.\" 364 U.S. at 223-224, 80 S.Ct. at 1447. (Emphasis ours). Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the commands of the Fourth Amendment have been made applicable upon state officers under the Fourteenth Amendment. Accordingly, incriminating objects seized in violation of the Fourth Amendment are inadmissible in state criminal prosecutions. Massey v. United States, 358 F.2d 782 (10th Cir. 1966), cert. denied 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966). And this court has held that in federal prosecutions the test of reasonableness in relation to Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers. United States v. Self, 410 F.2d 984 (10th Cir. 1969); Sablowski v. United States, 403 F.2d 347 (10th Cir. 1968). Di Re applied state law governing arrests in the absence of a controlling federal statute; Elkins held that federal courts must apply federal law, i. e., a combination of federal statutes and federal common law, in federal prosecutions. And in Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688" }, { "docid": "21920553", "title": "", "text": "informant was justified in concluding that the presence of illegal firearms on appellant’s premises was a probability. The validity of the search warrant on its face is also challenged. Relying on Louisiana Supreme Court decisions in State v. Chargois, 245 La. 647, 160 So.2d 231 (1964), and State v. Lee, 247 La. 553, 172 So.2d 678 (1965), appellant contends that the search warrant was void since it failed to describe the premises to be searched with sufficient particularity to satisfy state and federal constitutional requirements. In effect, appellant argues that we should, in this federal prosecution, adhere to rulings of the Supreme Court of Louisiana to test the validity of the search warrant used to search his premises. Appellant points to the Supreme Court’s decision in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), as being persuasive on this point. In Elkins, the Supreme Court held “that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial”. After so concluding, the Supreme Court said: “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” [Emphasis added]. 364 U.S. at 223-224, 80 S.Ct. at 1447. See, also, United States v. Alberty, 10 Cir., 1971, 448 F.2d 706, where the Tenth Circuit, relying on Elkins, in effect held that in determining the admissibility of evidence in federal prosecution for unlawful possession of firearms, which evidence was the product of search and seizure of defendant’s automobile following his illegal arrest by city police officers, federal law, rather than state law, applied. Moreover, Rule 26," } ]

[ { "docid": "13459181", "title": "", "text": "failed to show that the district court’s holding is clearly erroneous. We agree with the Government’s observation that any encounter between police officers and citizens in which the citizen is aware of the officers’ identity will involve some degree of “subtle coercion.” Hearing of 5/19/92 at 15. The Magistrate was unable to quantify what precise circumstances created the “subtle coercion” in this case, so we are a bit mystified by his conclusion. Rice was not subject to harsh interrogation. See United States v. Nafzger, 965 F.2d 213, 216 (7th Cir.1992) (discussing mode of questioning); United States v. High, 921 F.2d 112, 116 (7th Cir.1990) (same). Pautz and his officers did not overwhelm Rice with their physical presence — there were only two officers, and Solomon was present when Rice consented to the search. See High, 921 F.2d at 116 (discussing mitigating effect of another citizen’s presence, and non-intimidating police-citizen ratio of 3 to 2); Borys, 766 F.2d at 311 (ratio of 2 to 1 not intimidating). The officers did not display weapons or physically touch Rice, and the encounter occurred during the day. See Duran, 957 F.2d at 503 (weapon display and time of encounter); United States v. Fryer, 974 F.2d 813, 819-20 (7th Cir.1992) (weapon display), cert. denied, — U.S. - — , 113 S.Ct. 2418,124 L.Ed.2d 641 (1992); Adebayo, 985 F.2d at 1340 (physical contact). Finally, Rice was not an overawed youngster being confronted with law enforcement for the first time. He was 38 years old when the search occurred, and had at least four prior criminal convictions. Magistrate Recommendation at 8. There is simply no evidence that Pautz coerced Rice, subtly or otherwise. Accordingly, we do not find that the district court’s determination that Rice voluntarily consented to the search of his automobile was clearly erroneous. B, Jury Instruction Rice also argues that the district court committed reversible error in refusing to give proffered jury instructions on possession. “On review of a challenge to the sufficiency of the jury instructions, the question is not the correctness of a single phrase, but whether the ■ instructions as a" } ]

[ { "docid": "22333094", "title": "", "text": "a joint trial. C. Evidentiary Issues 1. Admissibility of Watson’s Statements Watson filed a motion to suppress statements made to law enforcement officers after her arrest. After an evidentiary hearing the court entered an order on March 29, 1993, denying the motion to suppress. The order stated The Court finds that on August 13,1992, law enforcement officers entered the residence at 4801 Meadow Park, Houston, with Defendant Mona Smith Watson’s permission, read Defendant her rights, lawfully took Defendant into custody pursuant to an arrest warrant, and searched the home of her mother, Marion Smith, following consent from Defendant with her mother’s authorization. Credible testimony from DEA agent Roger Norman, ATF agent Mary Daugherty, and Harris County Sheriffs Department’s Butch Porter convinces the Court that Defendant did not ask for an attorney nor request her mother to call an attorney for her at this time. ... Defendant’s voice exemplar tape fortuitously and clearly shows that during her post-arrest questioning by Butch Porter at the [DEA building], Defendant Mona Smith Watson failed to assert, even equivocally, her right to have an attorney present or to stop the questioning, [citations omitted] Porter did not pressure her, but gave her free choice whether to call an attorney or stop the interview. Defendant orally and in writing voluntarily and knowingly waived her rights to do so. Moreover FBI agent Bobby Echard credibly testified that Defendant was fully cooperative during her interview and did not request a call to anyone other than her mother. Moreover Defendant voluntarily signed a consent form for the search of her apartment. The Court did not find believable the testimony of Marion Smith, whose credibility was undermined by questioning about her job, income, false credit statement for the purchase of a Jaguar, and the car itself. All testimony showed that at the time of her arrest and subsequent processing and interview at the [DEA budding], Defendant was in complete control of her senses, not under the influence of drugs, coherent, able to understand, and fully apprised of her rights. This and other appearances before this Court have revealed her to be" }, { "docid": "12153630", "title": "", "text": "away had gone over a cliff embankment, and was on fire. (The burning vehicle was subsequently identified as the gold and white, late-model Cadillac taken from the Pampa, Texas service station. An arson expert from the sheriff’s office concluded that the vehicle had been intentionally set on fire with gasoline.) Deputies Swink and Fisher had been previously aware of a high incidence of criminal activity in the area where the three had been arrested, specifically, cattle poaching, car stripping, and thefts from neighboring residences. It was a lonely, dark and wooded area, infrequently traveled at the hours in question. At trial, Walling made an offer of proof that Pat Johnson, a fellow inmate of Smith’s at the county jail, could testify that Smith had told him that Walling did not know that the Cadillac was stolen until the three arrived in California; that Smith had told Walling he wanted to abandon the Cadillac and that the latter had agreed with the idea that they would notify the police with an anonymous phone call; and that he had also told Walling that the car was stolen for the first time after they arrived in California. The district court refused to allow Johnson to testify when he was available. Walling’s testimony at trial was impeached by the introduction into evidence of two prior convictions in Virginia-grand theft of a tape recorder in May 1970, and attempted auto theft in November 1971. Walling presented four questions for review by this Court:. (1) whether the stopping of the white Cadillac by Deputy Fisher, based in large measure upon the observations of Deputy Swink, was a lawful temporary detention, and, irrespective of the validity of the stop, whether the subsequent search of the vehicle was proper under the circumstances; (2) whether the district court erred in not granting Walling a continuance, only ten days prior to trial on the substantive count under the Dyer Act, upon the return of the second indictment with the new conspiracy count; (3) whether the district court erred in admitting the impeachment evidence pertaining to the two prior State convictions;" }, { "docid": "23238566", "title": "", "text": "He appeared agitated, and his eyes were bloodshot and glassy and he was red-fa'ced. McClellan was concerned that Smith had been drinking. McClellan did not believe, given the circumstances, that Smith was a police officer and requested identification. Smith responded that “he did not have to show ... any f — ing ID” and attempted to exit his car by pushing the door into McClellan. McClellan, in an effort to avoid a physical confrontation, held Smith’s door closed with his hands and body, and advised Smith that he would not let him out until he produced identification. Smith continued trying to push his way out of the car,' threatening to “kick [McClellan’s] f — ing ass” and to arrest him. During the altercation, McClellan heard Smith use the word “backup” but was not able to see a radio or other police equipment in Smith’s car or determine who he was talking to. Eventually, McClellan yelled to Cristo to call the police. Ultimately, Smith was able to push McClellan out of the way with his car door and by punching him in the face. Smith apparently struck his face on the car door as he exited. After wrestling with Smith, and without throwing a punch, McClellan was able to hold Smith down over the hood of McClellan’s car. At that point, McClellan noticed that Smith was bleeding profusely from the injury to his face and saw him speak into a hand-held radio and say that he was being beaten (which was not true) and needed backup. McClellan then told Smith that he would release him if he promised to stop fighting. Smith said he would stop, and McClellan released him and walked toward his house. As he did so, Smith grabbed him and told him to wait. McClellan once again asked for identification and once again was rebuffed. The Rensselaer police arrived moments later and Smith directed an officer to arrest McClellan. En route' to the police station, McClellan told the police officer that he did not know Smith was a police officer and was only trying to restrain him from" }, { "docid": "14274579", "title": "", "text": "arrested Oestreich, placed her in Gomez’s squad car, and checked for outstanding warrants. Oestreich asked if she would be released if she provided information about “something serious in [Smith’s] car.” Gomez told Oestreich there was nothing she could say that would secure her release and proceeded to Smith’s car, where he was still seated, to investigate his involvement and the property Oestreich put in his car. Smith cooperated, providing Ms identity and cellphone number and answering questions regardmg Ms mimmal knowledge of Oestreich’s domestic dispute. Officer Gomez returned to her squad car to run a warrant check on Smith. From the back seat, Oestreich volunteered that there were drugs and a gun in Smith’s car, providing their supposed location, and said Smith had been in trouble for drugs in the past. Officer Gomez decided to return to Smith’s car to talk with him further. Smith admitted he was on parole for a drug offense. He denied Oestreich’s accusation, stepped out of the car, and consented to a search of his person, which revealed nothing. But when Officer Gomez asked for consent to search the car, Smith became agitated and refused. Gomez testified at the suppression hearing that she handcuffed Smith and placed him in the back of another squad car because “he was upset about us searching his car” and “I thought he might start fighting with us.” Officer Gomez placed a call to a nearby police department and requested a drag-sniffing dog, which arrived within ten minutes. The dog alerted on the car, indicating the presence of drugs. While the dog’s handler searched the car for drugs, Officer Gomez talked further with Oestreich, who again insisted there was a gun located on the back side of the car’s back seat. Gomez returned to the car’s passenger compartment, reached behind the back seat, and seized a loaded nine-millimeter handgun. She placed Smith under arrest, and he was taken to the Crystal Police Department, where he made incriminating statements after receiving Miranda warnings. The total time from Officer Gomez’s arrival on the scene until Smith’s arrest was approximately thirty minutes. On" }, { "docid": "8881337", "title": "", "text": "that he did not have a license. McCoy asked Smith if he lived at the residence; Smith replied that he did not. Smith told McCoy that he had turned off of the highway “because he saw the patrol vehicles down the street and thought there was an accident.” Id. McCoy asked Smith to step out of his vehicle and handcuffed him. After verifying by radio that Smith’s license had been revoked, McCoy placed Smith under arrest. A second police officer who had followed McCoy to the scene then asked Smith for permission to search the Lexus. Smith replied that “he didn’t care, it wasn’t his vehicle.” Id. at 60. Police searched the vehicle and discovered a loaded magazine for a 9-millimeter handgun and a small quantity of cocaine base. After advising Smith of his Miranda rights, officers asked him about the weapon to which the magazine belonged. Smith responded that he had thrown a handgun out of the vehicle near the entrance to the driveway. Although the officers found no handgun in the area Smith described, they eventually recovered a Ruger 9-millimeter pistol near the Lexus at the end of the driveway. Smith was then transported to the police station. After receiving his Miranda warnings in writing, Smith stated that the pistol belonged to a friend who had died and that he kept the weapon because he was uncertain what to do with it. Smith was subsequently charged with possession of a firearm by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000). He pleaded not guilty and moved to suppress the evidence obtained following the vehicle stop, arguing that the officers lacked reasonable suspicion to justify the stop. The district court held that the officers had reasonable suspicion to stop Smith’s vehicle because it (1) turned abruptly into a private driveway before reaching the police checkpoint and (2) moved — from a stopped position — around the curve of the driveway “as far as it could go,” J.A. 83, in response to McCoy’s police lights. The court concluded that based on the totality of the circumstances, the officers" }, { "docid": "5541499", "title": "", "text": "asked why she believed Smith was holding Wallace against her will, Saarloos responded that a no-contact order existed between Smith and Wallace, that Smith was known to become “very, very, very angry,”- and that Smith was a known drug user. At 7:49 p.m., Officers Sandgren, Van Ravenswaay, and Lieuwen- arrived at Smith’s home in response to the call. Sandgren explained to the other officers that he had been recently dispatched to the same location in response to a report that a male suspect was discharging firearms outside the home. At the time the officers reported to the scene, Sandgren believed' Smith was the same individual police had responded to previously; however, he later discovered the individual was a prior resident and was not Smith. The officers knocked on Smith’s door at 7:52 p.m..-Smith answered the door and Sand-gren asked, “Is Alexis here?” Smith responded that Wallace was not at the home. Sandgren explained that Wallace had not returned to the half-way house as scheduled and the officers had reason to believe she was at Smith’s hopae. Smith refused to give consent to the police to search for Wallace in his home and demanded the officers obtain a search warrant before he would allow them to enter his home. The officers returned to their patrol car and discussed the situation. The officers radioed in to dispatch to check for’Wallace at the local jail,- hospitals,' detox facilities, and similar locations. Sandgren told his fellow officers that they were’ merely “guessing” whether Wallace was inside the apartment, but ‘expressed his belief that Smith would not allow them inside the home regardless of Wallace’s, presence based on the prior incident at the location. Dispatch contacted the officers between 7:58 and .8:00 p.m., reporting Wallace was not present at the other locations and that Smith had outstanding, unrelated warrants for his arrest. Van Ravenswaay .returned to his patrol car and called Saarloos at 8:03 p.m. to obtain more information, Saarloos reported that Wallace left the half-way house around 4:25 p.m. and that Smith had been overheard yelling at Wallace on the phone that day. Saarloos" }, { "docid": "21047486", "title": "", "text": "improperly searched after Patri discovered the crack cocaine about his person. R. 1, 2-3. First, there is no right to a completely accurate police report. Furthermore, Patri admitted before the jury that his memory of the incident had faded over the intervening months and that he could not testify with certainty that Smith dropped the crack cocaine from his hand. Also without merit is Smith’s claim that Patri violated his rights by searching him after Patri saw him drop what he believed to be crack cocaine. A lawfully arrested prisoner has no right to be free from searches of his person. Indeed, the notion that a prisoner when processed into a jail should be free from search is ridiculous. Such a search is valid as a search incident to a lawful arrest. See, e.g., United States v. Shugart, 117 F.3d 838, 846 (5th Cir.1997). For Patri’s search to have violated Smith’s rights in this context, this court would have to disavow law enforcement’s authority to protect itself, the general public, and other prisoners by searching arrested persons. The second step of the immunity analysis asks whether “the actions of the officer [were] objectively reasonable under the circumstances, such that a reasonably competent officer would not have known his actions violated then-existing clearly established law. The question of whether an official’s conduct was objectively reasonable is a question of law, to be decided by this Court.” Evett, 330 F.3d at 687 (citations omitted). Patri’s actions were objectively reasonable, since he was merely doing his job. It was Patri’s responsibility as an intake jailer to search prisoners brought to the Tarrant County Jail. It was especially important for him to search Smith thoroughly because the arresting officer felt that he was concealing something and told Patri that. Undoubtedly there was evidence that Smith was concealing 15 grams of crack cocaine. Thus Patri’s search of Smith was objectively reasonable. Second, Patri’s truthful testimony at Smith’s trial was objectively reasonable, as shown by the record. Smith does not contest this, but asks whether “a witness’s honest testimony [is] a lawful excuse for a fabricated" }, { "docid": "3509151", "title": "", "text": "a preponderance of the evidence that consent to search was freely given, White, 81 F.3d at 780, but awareness of the right to refuse is not necessary for consent to be voluntary, United States v. Barahona, 990 F.2d 412, 417 (8th Cir.1993). Certain of Smith’s individual characteristics are relevant to the issue of the voluntariness of his consent, including (1) his age; (2) his general intelligence and education; (3) whether he was under the influence of drugs or alcohol; (4) whether he was informed of his Miranda rights; and (5) whether he had experienced prior arrests and was thus aware of the protections that the legal system affords to suspected criminals. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990). The environment in which Smith allegedly consented to the search is also important, specifically (1) the length of time he was detained; (2) whether the police threatened, physically intimidated, or punished him; (3) whether the police made promises or misrepresentations; (4) whether he was in custody or under arrest when the consent was given; (5) whether the consent occurred in a public or a secluded place; and (6) whether he stood by silently by as the search occurred. Id. After applying the Chaidez factors, the district court concluded that the government had met its burden of proof establishing that Smith voluntarily consented to the search of his bag. This finding is supported by the record. As a factual matter, the court determined that the arresting officers “made no threats, promises, misrepresentations or signs of intimidation.” Furthermore, as Smith concedes on appeal, there is nothing about his background or character that would impede his ability to voluntarily consent to the search of his bag. The record shows that Smith was 47 years old at the time of his arrest, that he apparently has no psychological problems, and that he has a high school education. The record also reveals that the encounter occurred in a public place during daylight hours, that the entire episode leading up to the search lasted only a few minutes, that Smith expressed no reluctance to speak" }, { "docid": "22148737", "title": "", "text": "and found that the challenged police stops were not illegally pre-textual in either case. In Pino, an officer observed a vehicle swerving on and off the freeway, nearly hitting the guardrail. The officer pulled the vehicle over, questioned the driver, and decided to give the driver a citation and to arrest the driver for illegal lane changing. Pino, 855 F.2d at 358-59. Applying the “reasonable officer” analysis from Smith, we held that the stop of the vehicle was not pretextual, noting that the officer’s “observation of the swerving vehicle gave him probable cause to believe that Pino had violated one or more ... Tennessee motor vehicle statutes.” Id. at 361. In Crotinger, an officer using a speed radar detector pulled over a vehicle for going 66 mph in a 55 mph zone. Upon approaching the ear, the officer observed white pills on the floor and detected the smell of marijuana. The officer obtained written consent from the owner of the vehicle to conduct a search of containers and compartments within the vehicle. A search was conducted and marijuana was found. The defendant, however, challenged the introduction of the marijuana as evidence against him, on the ground that it was illegally obtained as the result of a pretextual traffic stop. We rejected this argument and held that probable cause existed for stopping the vehicle and that “[ojbjectively, it is reasonable for a police officer operating a speed trap to stop and ticket vehicles going 66 mph in a 55 mph zone.” Crotinger, 928 F.2d at 206. Based on clearly established precedent in this Circuit, we think the district court committed reversible error by denying Ferguson’s motion to suppress. Therefore, we reverse Ferguson’s conviction. Accordingly, we need not address Ferguson’s argument that the district court erred by refusing to consider his challenge to the validity of two prior convictions used to categorize him as a career offender. Ferguson, 989 F.2d at 205-06. In addition, Judge Boggs’ relied upon Smith as the controlling standard for determining whether the traffic stop was unlawfully pretextual: Although the court professes allegiance to the objective test, it" }, { "docid": "6047613", "title": "", "text": "by the absentee program, Western Electric discharged Hodge. The district court correctly concluded that the 1974 absences and Hodge’s varied work performance provide a legitimate, non-discriminatory reason for Western Electric’s failure to advance Hodge. After reviewing the record, we find clear and time-specific reasons for Hodge’s non-advancement at the December, 1974, index review session. Finding no error, we affirm the district court’s holding that Western Electric effectively rebutted Hodge’s prima facie case of discrimination. K. Appellee Fred J. Smith Smith is an Index 3 installer. The statute of limitations relevant to Smith’s claim bars causes of action accruing prior to September 9, 1972. The first index review, within the statute of limitations, at which Smith was presumably discriminated against occurred in December, 1972. On Western Electric’s behalf, McLanahan testified that he supervised Smith somewhere in the area of 1976 or 1975. He emphasized that Smith did an outstanding wire job without any errors;. Smith, however, was unable to test the work completed. McLanahan testified that most Index 4 installers could test complet ed work of this type with “hardly any problems.” Next, Boggs testified that he supervised Smith in the early 1970’s and at that time, Smith had “some quality problems with his wiring.” Boggs added that he worked with Smith again in mid-1976, and Smith’s work was average or better. The district court viewed these facts and the fact that Smith’s Installer Performance Appraisal reflected favorably on Smith’s ability, and concluded that Smith’s prima facie case had not been rebutted. After the same, the district court held that Smith was entitled to recover under both his section 1981 and his Title VII claims for disparate treatment under the Index Review System. Western Electric has not convinced us that the district court’s finding is clearly erroneous. L. Lawrence Tunsil Tunsil, an Index 3 installer, is a Title VII and section 1981 claimant. The relevant statute of limitations bars causes of action accruing prior to September 9, 1972. The first index review within the statute of limitations at which Tunsil was presumably discriminated against occurred in December, 1972. McLanahan testified that" }, { "docid": "16421785", "title": "", "text": "out to him as he and Solis were walking in the apartment complex, Jimenez had not realized that Smith was a police officer, so he had continued walking toward the pickup truck. Jimenez testified that he eventually realized Smith was a police officer when Smith asked him to stop again. At this point, Jimenez testified: Well, [Officer Smith] asked for me to stop again. When I reached behind the white truck my foot hit something or kicked something which made a metallic sound and he asked me to raise my hands and for Alberto Solis to raise his hands and step out where he could see us. Jimenez also denied ever telling Officer Gray that the gun belonged to him. Anticipating that Jimenez might choose to testify, the government sought leave of the court to impeach him with his prior felony convictions for burglary and assault with a deadly weapon. Although the parties previously had entered into a stipulation that Jimenez was a felon, satisfying that element of the felon in possession of a firearm statute, the government wanted to introduce the specific convictions by name in order to impeach Jimenez’s testimony under Federal Rule of Evidence 609(a)(1). The issue was whether the probative value of the impeachment outweighed the danger of unfair prejudice. The district judge agreed to allow the government to introduce Jimenez’s prior felonies, but ordered that the assault with a deadly weapon conviction be referred to as a'“felony involving a firearm.” Although the district judge obviously was attempting to minimize any prejudice to the defendant, he made no specific reference to the five factor inquiry set forth in United States v. Cook, 608 F.2d 1175, 1185 n. 8 (9th Cir.1979) (en banc). The first two questions the government asked Jimenez on cross-examination were whether he had been convicted of the two felonies, including the “felony involving a firearm.” The district judge gave a limiting instruction to the jury that they were to consider Jimenez’s previous felony convictions only as they might bear on his believability as a witness, and the government did not mention the convictions" }, { "docid": "6482184", "title": "", "text": "crotch area. 7. Miller’s search of the vehicle based on Smith’s consent yielded no drugs, but Baleo changed “demeanor” when sniffing Smith’s crotch, and a similar demeanor change when sniffing Smith’s seat in the car. It is true that in his telephone testimony at the suppression hearing Campbell denied making any statements about Smith’s possession of drugs and it is true that Baleo did not actively “alert” on Smith. These facts notwithstanding, the magistrate judge found and the district court agreed that Campbell’s inconsistent telephone testimony was not believable and that Trooper Miller’s explanation of Bal-co’s expected behavior was convincing. These factual assessments of the district court are far from clearly erroneous. Therefore, the facts and information known to Miller by the time he decided to transport Smith to a KSP post were sufficient to warrant a prudent person in believing that Smith has committed an offense. Second, although Trooper Miller did not think he was arresting Smith, the district court concluded that transporting Smith to a KSP post in handcuffs constituted an arrest. We have held that “a clear deprivation of liberty caused by law enforcement officers without formal words is nonetheless an arrest.” Centanni v. Eight Unknown Officers, 15 F.3d 587, 590 (6th Cir.1994) (internal quotations marks and alterations omitted). As we have had occasion to explain, determining whether an arrest occurred “is a fact-sensitive inquiry, depending on the totality of the circumstances[,] [for which a] court is to consider a variety of factors,” including “transportation of the detainee to another location,” and “significant restraints on freedom of movement involving physical confinement or other coercion.” United States v. Williams, 170 Fed.Appx. 399, 403 (6th Cir.2006). We have also noted that under most circumstances, the police “cross the line” between an investigatory detention and a custodial arrest, when a person is “remove[d] from ... [a] place in which he is entitled to be and transported] ... to the police station.” United States v. Butler, 223 F.3d 368, 374 (6th Cir.2000). In this case, handcuffing Smith and transporting him to a police post, where he remained handcuffed for at least" }, { "docid": "21421813", "title": "", "text": "OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter comes on before this court on an appeal from a final judgment of conviction and sentence in this criminal case entered on June 6, 2006, following appellant Devon Smith’s conditional plea of guilty after the District Court denied his motion to suppress. The circumstances of the case are straightforward. On June 8, 2004, Lancaster, Pennsylvania, police officers Christopher Laser and Richard Heim while on patrol observed Smith sitting in the passenger seat of an automobile that Danny Santiago was operating. Heim recognized Smith and was aware that there was an arrest warrant outstanding for him. Consequently, the officers stopped the vehicle and arrested Smith. Subsequently, Laser and Santiago got into an altercation during which Smith fled the scene. After additional officers arrived the police recaptured Smith and rearrested him. They also arrested Santiago at the scene of the stop. The police did not know who owned the vehicle for neither Smith nor Santiago claimed to own it. Moreover, Santiago said he did not know who the owner was, its registration papers were not available, and Santiago did not know the location of the registration papers. Furthermore, inasmuch as the police arrested both men neither could drive the vehicle which had no other occupants. Moreover, there was no one else available at the scene to take its possession. These circumstances created a problem for Laser and Heim because they believed that they should not leave the vehicle at the place where they stopped it inasmuch as the conditions in the area led them to believe that if they did so the vehicle might be damaged, vandalized, or stolen. Therefore, Heim impounded the vehicle and drove it to the police station. At the station during a routine warrantless inventory search of the vehicle, Laser found a loaded semi-automatic handgun in its glove department. He then interrupted the search which he resumed after he obtained a search warrant for the vehicle. Subsequently, on the same day, in a statement that he has not renounced as untruthful, Smith told police detectives that he" }, { "docid": "6047614", "title": "", "text": "this type with “hardly any problems.” Next, Boggs testified that he supervised Smith in the early 1970’s and at that time, Smith had “some quality problems with his wiring.” Boggs added that he worked with Smith again in mid-1976, and Smith’s work was average or better. The district court viewed these facts and the fact that Smith’s Installer Performance Appraisal reflected favorably on Smith’s ability, and concluded that Smith’s prima facie case had not been rebutted. After the same, the district court held that Smith was entitled to recover under both his section 1981 and his Title VII claims for disparate treatment under the Index Review System. Western Electric has not convinced us that the district court’s finding is clearly erroneous. L. Lawrence Tunsil Tunsil, an Index 3 installer, is a Title VII and section 1981 claimant. The relevant statute of limitations bars causes of action accruing prior to September 9, 1972. The first index review within the statute of limitations at which Tunsil was presumably discriminated against occurred in December, 1972. McLanahan testified that Tunsil had been under his supervision indirectly for approximately 80% of Tunsil’s career with Western Electric. He stated that Tunsil needed constant supervision to keep him at his work location and that Tunsil’s wiring ability was marginal. McLanahan further stated that Tunsil’s production was average, but that his quality was very poor at times. Last, McLanahan testified that Tunsil had trouble applying knowledge from his head to his hands. Boggs testified that he supervised Tunsil in the early 1970’s on a job assignment which involved a complex wiring project. According to Boggs, Tunsil was unable to competently perform the task and, therefore, made over fifty wiring errors during the course of the project. Boggs further testified that he observed other supervisors having trouble keeping Tunsil at his work locations. The district court expressly stated that the testimony presented by Western Electric related closely to Tunsil’s ability and his attitude. Thereafter, the district court found that the company’s evidence provided a legitimate, non-discriminatory explanation for Tunsil’s slow advancement. The district court concluded that this evidence rebutted" }, { "docid": "2143242", "title": "", "text": "agent testified that they had seen defendant driving this car on prior occasions. Concluding that the individual in the Cadillac was probably defendant, Watts requested that the Wichita police department stop the car, which it did. After stopping the car, Officer Phillip Smith of the Wichita police asked for defendant’s license and told him that he was being stopped at the request of the highway patrol. Defendant told Smith that he was dropping off some documents at the attorney’s office in whose parking lot they had stopped. Smith asked defendant for permission to search the vehicle, which defendant granted orally. Smith also asked defendant to sign a written consent form, and defendant accompanied Smith to the patrol car to execute the waiver. A second officer, Gerald Dickerson, then went to defendant’s car, and observed a grey plastic film canister on the front seat. He retrieved it, opened the lid, and saw a number of small plastic baggies with a powdery substance in them. Dickerson replaced the lid and put the canister back on the seat. At that point, members of the DEA task force arrived and took over the search. The DEA made no further search of the vehicle at the scene, but drove it to their headquarters, where a complete search was conducted. The agents discovered, in addition to the substance in the film canister, a loaded .357 Smith & Wesson revolver under the driver’s seat, a number of small Ziploc bags, and a large box of matchbooks. Although defendant was taken to DEA headquarters, he was not charged that day. Four months later, DEA agents arrested defendant and charged him with conspiracy to distribute heroin and with possession of a firearm during a drug trafficking crime. At trial, the government offered the testimony of three former heroin addicts, all of whom claimed to have purchased heroin from defendant. Williams, one of the witnesses, stated that he had bought heroin from defendant in Davis’ presence, and that on one occasion Davis had intervened when defendant refused to continue to be Williams’ supplier. Williams also testified as to his understanding" }, { "docid": "10425903", "title": "", "text": "BRIGHT, Senior Circuit Judge. Edward Kilgore appeals from his conviction for embezzling mail in violation of 18 U.S.C. § 1709. Kilgore contends the district court erred in denying his motion to suppress confessional statements made after postal inspectors allegedly promised Kilgore that he would not be arrested or go to jail. Kilgore claims that these promises amounted to official coercion, rendering his subsequent confession involuntary and thus violative of his fifth amendment due process rights. We affirm. I. Edward Kilgore was a probationary letter carrier. When credit eards were stolen in the mail, suspicion fell on Kilgore. Postal inspectors set up a sting operation and Kil-gore was caught placing two credit cards into the trunk of his personal car, instead of mailing them to their rightful owners. When Kilgore returned from his postal route, postal inspectors read Kilgore his Miranda rights and gave Kilgore a written waiver of rights form to sign. Kilgore read the first line out loud, establishing that he could read. Kilgore signed the form. Inspectors did not threaten Kilgore during the interview. Nor did they handcuff him. Moreover, Kilgore did not request an attorney or that the questioning cease. During the interview, Kilgore initially denied knowledge of or involvement in credit card loss, despite being advised that he was observed stealing the cards. At this point, inspectors asked to search Kilgore’s person. Kilgore emptied his pockets, wallet and took off his shoes. Inspectors found no evidence. They then asked to search Kilgore’s private vehicle. Kilgore refused consent. At this point, pursuant to verbal authorization from the United States Attorney’s office, Kilgore’s personal vehicle was impounded until a search warrant could be secured. Kilgore, however, refused to surrender his car keys. Soon thereafter, Kilgore asked to speak privately with one of the inspectors, Inspector Smith. Initially, Kilgore wanted assurance that he would not be arrested or go to jail overnight. Smith informed Kilgore that he would not be arrested that night, but Smith also informed Kilgore that his automobile would be impounded. When Kilgore learned that he could not take his car home, Kilgore began to cry" }, { "docid": "22291157", "title": "", "text": "floorboard of the vehicle. Smith then exited the car and tried to strike Deputy Gilmore. After a struggle, Smith escaped on foot. Deputy Gilmore pursued Smith and observed him throw an object to the ground. After Smith was apprehended, Gilmore found a .38 caliber bullet in the location on the street where he had seen Smith throw the object. A search of Smith at the scene resulted in the recovery of another .38 caliber bullet from his front shirt pocket. A corrections deputy at the jail discovered yet another bullet in Smith’s front pants pocket. The driver of the stopped car left the scene in his car when Gilmore began chasing Smith. The driver was never identified, and officers never recovered the handgun or bag of suspected cocaine that Deputy Gilmore had observed in Smith’s possession during the initial stop of the vehicle. At Smith’s sentencing hearing, Special Agent Craig Saier, of the Bureau of Alcohol, Tobacco, and Firearms, testified that Smith previously had been convicted of two robberies that involved firearms. About three months after his release from imprisonment for the robberies, he was arrested for selling cocaine. During his arrest, he attempted to use a firearm against the arresting officers. Special Agent Saier also described some phone calls Smith had made from the jail after his arrest on the instant charges, during which Smith told the other person (who Special Agent Saier believed was Smith’s wife) that “that lady no longer has what was in the car at the time it was stopped, that she would have gotten rid of it.” When confronted with the phone calls, Smith admitted that the driver’s name was Monique, but claimed that he did not know her last name or where she resided. The PSI recommended a base offense level of 24 and a 4-level upward enhancement for possession of a firearm or ammunition in connection with another felony offense (resisting arrest with violence), pursuant to U.S.S.G. § 2K2.1(b)(5). In addition, the PSI noted that because Smith was subject to an enhanced sentence under 18 U.S.C. § 924(e), his adjusted offense level" }, { "docid": "3509147", "title": "", "text": "WOLLMAN, Chief Judge. Rickey L. Smith appeals the district court’s denial of his motion to suppress. We affirm. I. On the morning of March 3, 2000, officers conducting surveillance of the Omaha, Nebraska, bus station observed Smith and his traveling companion, Troy Bales, arrive on a bus from California. Smith and Bales carried very little luggage, and instead of entering the terminal with the other arriving passengers they walked around the parked buses and directly to the street, heading in the direction of a taxi stand. Based on their experience in law enforcement, the officers became suspicious that Smith and Bales were involved in illegal drug activities. What occurred next remains somewhat unclear. According to police testimony at the suppression hearing held before a magistrate judge, two officers followed Smith and Bales out to the street and initiated a conversation. After identifying themselves and displaying their badges, one of the officers questioned Smith and the other spoke with Bales. Smith was then asked if he would consent to a search of his bag, and he responded “go ahead.” A third officer, who had been positioned with his partner across the street from the station, then searched one of Smith’s duffel bags and discovered approximately 812 grams of marijuana and 108 grams of methamphetamine. Smith’s version of his encounter with police is different. At the suppression hearing, Smith testified that one of the officers grabbed him by the arm, “escorted” him away from the street, and restrained him as he was questioned. Smith also alleges that the two officers carefully positioned themselves in order to separate him from Bales. Finally, Smith testified that he did not verbally consent to the search of his bag, but simply raised his arms in resignation when he realized that a search was inevitable. Smith’s version of the encounter was generally corroborated by Bales. Neither the magistrate judge nor the district court, which conducted a de novo review of the suppression issue, made explicit credibility findings regarding the differing testimony at the suppression hearing. The district court acknowledged that the officers had no reasonable suspicion to" }, { "docid": "3509148", "title": "", "text": "responded “go ahead.” A third officer, who had been positioned with his partner across the street from the station, then searched one of Smith’s duffel bags and discovered approximately 812 grams of marijuana and 108 grams of methamphetamine. Smith’s version of his encounter with police is different. At the suppression hearing, Smith testified that one of the officers grabbed him by the arm, “escorted” him away from the street, and restrained him as he was questioned. Smith also alleges that the two officers carefully positioned themselves in order to separate him from Bales. Finally, Smith testified that he did not verbally consent to the search of his bag, but simply raised his arms in resignation when he realized that a search was inevitable. Smith’s version of the encounter was generally corroborated by Bales. Neither the magistrate judge nor the district court, which conducted a de novo review of the suppression issue, made explicit credibility findings regarding the differing testimony at the suppression hearing. The district court acknowledged that the officers had no reasonable suspicion to detain Smith or Bales, but concluded that no seizure occurred and that Smith voluntarily consented to the search of his bag. The court accordingly denied the motion to suppress. Smith subsequently entered a conditional plea of guilty to one count of possession with intent to distribute meth amphetamine and was sentenced to forty-six months of imprisonment. II. On appeal, Smith argues that the officers illegally detained him at the bus station without probable cause and that his consent to search his bag was not voluntary. We review the question of whether a seizure has occurred de novo and the district court’s determination of voluntariness for clear error. United States v. Mendoza-Cepeda, 250 F.3d 626, 628 (8th Cir.2001). The district court concluded that no seizure occurred “even accepting [Smith’s] version of events.” We question this conclusion, for although physical touching is only one aspect of the totality of the circumstances test we employ in determining whether a seizure occurred, United States v. White, 81 F.3d 775, 779 (8th Cir.1996), we doubt that a reasonable person would" }, { "docid": "6482176", "title": "", "text": "BOGGS, C.J., delivered the opinion of the court, in which GRIFFIN, J., joined. MERRITT, J. (p. 363-64), delivered a separate dissenting opinion. OPINION BOGGS, Chief Judge. Defendant Terrence Tyrone Smith appeals from the district court’s denial of his motion to suppress the evidence underlying his guilty plea to two counts of possession with intent to distribute five grams or more of cocaine base. Smith also appeals from the district court’s sentence of 240 months, based in part on the court’s determination that Smith was a career offender. We hold that police officers had probable cause to arrest Smith and search him incident to the arrest, and that Smith was a career offender under the Sentencing Guidelines. Therefore, we affirm. I A On March 22, 2005, Kentucky State Police (KSP) executed a controlled buy of 45 grams of crack cocaine from Smith in Lexington, Kentucky. The buy “utilized an undercover police officer and a cooperating confidential source” (Source A). On or about April 25, 2005, Source A informed KSP that Smith was “on the way to Hazard” with crack cocaine. The police arranged for a second confidential source (Source B) to sit with KSP at the outskirts of Hazard and identify Smith’s vehicle, if and when Smith entered Hazard. Source B was the girlfriend of Source A, and was familiar with Smith, Smith’s history, and Smith’s vehicles. Police deemed Source A and B to be “factual and believable,” because they had worked “about 250 drug eases” around the years 2004 and 2005. Source B identified Smith’s vehicle as it entered Hazard. KSP Trooper Miller, who operated a special canine unit and was advised about Smith’s suspected drug activity, stopped Smith’s vehicle because it failed to signal at a turn, at approximately 1:00 p.m. Smith was the driver of the vehicle; Ronnie Campbell was a passenger. Smith did not dispute that he failed to signal a turn. When Trooper Miller approached the vehicle and spoke to the occupants, he noticed that Smith’s zipper was unzipped and that he kept “tugging and pulling” at his crotch area. Miller received Smith’s permission to search" } ]

[ { "docid": "4726503", "title": "", "text": "may be necessary properly to dispose of the issue. Cf. Helvering v. Stuart, 317 U.S. 154, 167, 63 S.Ct. 140, 87 L.Ed. 154. Affirmed in part, reversed in part, and cause remanded. § 22(a) provides in part that “ ‘Gross income’ includes gains, profits, and income derived from * * * sales, or •dealings in property, whether real or personal, growing out of the ownership •or use of or interest in such property; .also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source ■whatever.” In the case of the trust for petitioner’s only son, the latter’s wife was on her husband’s death also to have a share for life in the benefits of the trust property, but this fact is of no particular significance on the controlling question involved. For example, see 58 Slat. 51, 26 U. S.O.A. § 167(c), providing that income of a trust shall not be considered taxable to the grantor merely because in the discretion of the grantor acting as trustee it may be applied or distributed for the support or maintenance of a beneficiary whom the grantor is legally obligated to support or maintain, except to the extent that such income is so applied or distributed. SANBORN, Circuit Judge (concurring). The Tax Court decided that the income of the trust created by Louis Stockstrom was his income for purposes of taxation, under the doctrine of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, regardless of the fact that he could not recapture either trust income or trust principal. The basis for the decision is that Stockstrom, as donor-trustee, retained such broad powers of control and distribution over trust corpus and income that the income was taxable to him, although he could have none of it for his own use. I think the Tax Court might well have decided this case in favor of the taxpayer, but the standard for determining to whom the income was taxable is presently so vague and indefinite that" } ]

[ { "docid": "13418273", "title": "", "text": "trust estate then existing was to vest in the two principal beneficiaries (or their issue) share and share alike. But in making distributions the trustees had the sole judgment and discretion to make divisions and allotments and to determine the relative values of the property, their acts to be conclusive on all interested persons. By this control over valuation and distribution, the trustees could in effect vary the shares of the beneficiaries and indeed could distribute substantially the whole corpus to one beneficiary of their choosing. See Hall v. Com’r, supra, 150 F.2d 307. Retaining this plenary power to control the ultimate distribution of the trust fund is an attribute of ownership. Upon termination of the trust, there was a possibility that 'the trust corpus would revert to Mrs. Gay-lord and therefore she, as grantor, retained a remote interest in the corpus. This ■fact may be considered under Section 22 (a), supra. See Miller v. Com’r, supra, and cf. John E. Gallois et al. v. Com’r, 9 Cir., 152 F.2d 81; Fidelity Co. v. Rothen-sies, 324 U.S. 108, 111, 65 S.Ct. 508. See also Hall v. Com’r, supra, 150 F.2d page 307 and cases cited. The fact that taxpayers may not necessarily become repossessed of the corpus and the income does not militate against the conclusion that they have the powers of an owner since it is sufficient if they control the family purse strings. See Stockstrom v. Com’r, supra; George v. Comr., supra; Williamson v. Com’r, supra, and cf. Helvering v. Stuart, supra. Nor is the fact material that the powers are reserved as trustee rather than as grantor, when trustee and grantor are the same. In the Helvering v. Clifford case, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, the donor’s powers of control were reserved to himself as trustee and this has been true in other cases also. Foerderer v. Com’r, 3 Cir., 141 F.2d 53; Stockstrom v. Com’r, supra; Miller v. Com’r., supra; Hall v. Com’r, supra. See Article 166-1 of Treasury Regulations 94 and 101, and Section 19.166-1 of Treasury Regulations 103. Cases where" }, { "docid": "4726499", "title": "", "text": "not warranted in declaring that “In all of the trusts the immediate payment of any income to any beneficiary was in his [petitioner’s] sole discretion”, since in the trusts for his children the power to disburse, allocate and withhold income was subject to the qualification, “it being the intent of Louis Stockstrom [petitioner] that the Trustete in deciding whether or not to disburse any income to or for the benefit of any beneficiary * * * or as to the amount of income to be disbursed * * * shall be guided by the need or needs of such 'beneficiary for funds in order that he or she may continue to live in a manner which in the opinion of the Trustee befits the standard of living of such beneficiary.” The contention is that, in view of this provision, petitioner had no absolute power,to allocate or withhold income in these trusts, if the beneficiaries were in need of funds. Any need of a beneficiary, however, was to be such as “in the opinion of the Trustee befits the standard of living of such beneficiary”, and it was further provided that “The decision of the Trustee as to the apportionment of income * * * and as to the date or dates respectively for disbursement of income' shall be conclusive and binding on all parties in interest.” But, in any event, the fact that petitioner might not be able to act arbitrarily — as perhaps no trustee in exercising any discretion ever can — would not mean that he did not have the sole discretion, in a trust sense, as to the immediate payment of any income to any beneficiary, or that he did not have substantial powers over the distribution of income from the trusts, such as the Tax Court held that he had. Finally, it is argued that the decision in the present case is irreconcilable with subsequent decisions of the Tax Court in other cases and ought therefore to be treated as having been repudiated. But the Tax Court has not purported to repudiate its decision here, nor" }, { "docid": "13241333", "title": "", "text": "income about to be lost by Lillian Bartlett Studebaker, and originally considered transferring to the latter, as a wedding present, the right to the income which the decedent was receiving from her Illinois farm. After abandoning this proposal, the decedent did, on April 1, 1951, again exercise her power to amend Trust No. 19324. By this amendment she relinquished her life interest in the trust income in favor of Lillian Bartlett Studebaker, thus giving the latter the immediate right to the income therefrom. In addition, by means of a separate paragraph the decedent also relinquished her previously reserved power to alter, .amend, revoke or terminate the trust and to substitute trustees, in the following words: “Article Thirteenth: The trust under this indenture is irrevocable and the grantor shall have no power, at any time, to alter, amend, terminate or revoke this trust indenture or the trusts created thereunder, or any of them.” The effect of this latter paragraph -of amendment was to make the remainder interest of Lillian S. Hardy and Mary S. Winder absolute and complete. The above stated Article Thirteenth, '.being part of subdivision B of the instrument of amendment, was preceded by the following clause: “While neither the grantor nor the trustee believes this subdivision B will ever become effective, it is included herein for the express purpose of avoiding the possibility of any part of the property constituting the trust being or becoming a part of the estate of the grantor, or her husband, John M. Studebaker, Jr., and passing under her will, or his will, to their respective executors or administrators.” The vesting of the remainder interest in Lillian S. Hardy and Mary S. Winder effected by the April 1, 1951, amendment to Trust No. 19324 resulted in a gift tax of $119,156.62. Inasmuch as the decedent did not have available sufficient funds with which to pay the gift tax, she necessarily secured a loan of $90,000 from her bank in New York, the obligation to repay being undertaken by Lillian S. Hardy and Mary S. Winder, the true beneficiaries of the 1951 amendment, who" }, { "docid": "6545668", "title": "", "text": "the case at bar petitioner retained no powers of control over the corpus of her trusts comparable to those retained by the grantor in the Clifford case. On the contrary, petitioner appointed her husband, not herself, to aet as trustee and vested in him all powers of ma.na.gp.ment, including the power to accumulate or expend income for the benefit of the children. And it may be noted in this connection that the husband clearly had a substantial adverse interest in the disposition of both corpus and income. Each trust provided that when the beneficiary reached the age of 21 the accumulated or unexpended income of the trust fund was to be paid over to him, and thereafter he was to receive annually the net income until the death of either the beneficiary or the grantor, at which time the trust would be terminated and the corpus paid over to petitioner’s husband, the trustee. In the event the husband predeceased both the beneficiary and petitioner, the trust was to continue until the death of the beneficiary, when it was to terminate and the corpus revert to petitioner, if she survived the beneficiary; otherwise the corpus would go in remainder to others named in the trust instrument. Thus, it seems plain that petitioner retained no power oí control over any part of the corpus of either trust during the period ending January 15,1986, nor did she retain any like power exercisable thereafter unless the retention of such a power may be said to have been effected by reservation of the right to modify, alter or revoke the trusts at any time after January 15,1986, upon the giving of 30 days previous notice in writing to the trustee. Section 166 provides for taxing the income of a trust to the grantor where “at any time” the power to revest in the grantor title to any part of the corpus is. vested in the grantor. The application of the statute depends wholly upon the vesting of the described power. The provision that the trust should terminate and the corpus be paid over to petitioner" }, { "docid": "16162485", "title": "", "text": "or otherwise dispose of it, and, if he does dispose of it or divest himself of his control over and his rights in and to the property, he frees himself of the obligation to pay tax on the income therefrom. In this instance, however, the petitioner for his own reasons saw fit to retain unbridled control over the use and disposition of the property, and the doctrine of Helvering v. Clifford considered, he does not, in my opinion, have any sound basis for claiming that he should not bear the income tax burden on the income therefrom. Further, he may not, in my opinion, find haven behind the claim that the powers in question are trustee powers and not personal. He, the owner, fixed the terms and conditions of the grant and he specifically provided that his control was to continue without any limitation whatsoever. This fact is further emphasized by the fact that in other provisions, paragraph 4 (g) for instance, where he intended to limit the scope of his powers, he provided that he should act in good faith. It is accordingly my view that the petitioner’s rights in and to the property in question were such as to make the income therefrom his income within the meaning of section 22 (a), as interpreted and applied in the Clifford case. Arnold, J., agrees with this dissent. Kern, J., dissenting: I respectfully dissent from the conclusion of the majority because I am unable to distinguish this case in principle from Louis Stockstrom, 3 T. C. 255; affd., 148 Fed. (2d) 491; certiorari denied, 326 U. S. 719. In that case we held that the income of certain trusts was taxable to the settlor-trustee who held “extraordinarily broad administrative powers over the trust corpus” plus the power to pay immediately to the beneficiaries the trust income or to accumulate the income during their lives, in his absolute discretion. In the instant case the administrative powers of the settlor-trustee were even more “extraordinarily broad” than those held by the settlor-trustee in the Stockstrom case. The settlor-trustee here also has the power" }, { "docid": "16162477", "title": "", "text": "OPINION. Tyson, Judge: The respondent has taxed the entire income of the Taylor trust for 1941 to the petitioner, and contends, stressing the provisions of paragraphs 4 and 8 of the trust instrument, that it is so taxable under section 22 (a) of the Internal Revenue Code. He cites in support of this contention the cases of Louis Stockstrom, 3 T. C. 255; affd., 148 Fed. (2d) 491; certiorari denied, 326 U. S. 719; and Funsten v. Commissioner, 148 Fed. (2d) 805. Since we think that decision here is controlled by J. M. Leonard, 4 T. C. 1271, it would be fruitless to discuss the numerous cases involving a question such as we have here which have been decided by the courts since the decision by the United States Supreme Court in Helvering v. Clifford, 309 U. S. 331, applying section 22 (a) of the Internal Revenue Code. The powers of management given the grantor-trustee under the trust instrument here are, in substance, the same as those given the grantor-trustee in each of three trusts (the only ones necessary to be considered here) in the Leonard case; each of such trusts being created for the benefit of a daughter of the grantors, Leonard and his wife, and each trust instrument containing the same terms and conditions. As to the powers of the grantor-trustee over the income of each of the trusts in the Leonard case, the trust instrument shows that so much of the income and principal as, in the discretion of the trustee, was deemed proper could be used at any time, and from time to time, for the maintenance, upkeep, education, travel, and general welfare of the beneficiary until she was 21 years of age, but only if the grantors were unable to support her from other sources. As each beneficiary attained the age of 30 years the entire trust estate could be delivered to her and the trust terminated, and if not terminated then, termination was mandatory upon the beneficiary’s reaching the age of 50, when the entire trust estate should be delivered to her; and in" }, { "docid": "13418270", "title": "", "text": "v. Com’r, 10 Cir., 150 F.2d 304. Nothing in the record forbids the conclusion that grantors had substantial income in each year aside from this trust property. Cf. Stockstrom v. Com’r, 8 Cir., 148 F.2d 491; Com’r v. Buck, 2 Cir., 120 F.2d 775; George v. Com’r, 8 Cir., 143 F.2d 837. Grantors named themselves as trustees and retained the power to name successor trustees. They retained powers of management and control over the trust corpus as though they were absolute owners. They could hold securities in their own names, invest and re-invest the corpus, lend it, sell it, exchange, lease or mortgage, all at prices and upon such terms as they deemed advisable. Their discretion was absolute and uncontrolled and its exercise conclusive on all persons. See Section 2269, Civil Code of California. See also Cox v. Com’r, 10 Cir., 110 F.2d 934, certiorari denied, 311 U.S. 667, 61 S.Ct. 26, 85 L.Ed. 428; Rollins v. Helvering, 8 Cir., 92 F.2d 390, certiorari denied 302 U.S. 763, 58 S.Ct. 409, 410, 82 L.Ed. 592, 593; White v. Higgins, 1 Cir., 116 F.2d 312. See also Stockstrom v. Com’r supra. The grantors here could vote the stocks forming the corpus of the trust and otherwise deal with them as an absolute owner. For comment on this sort of economic control see Helvering v. Stuart, 317 U.S. 154, 63 S.Ct. 140, 87 L.Ed. 154; Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 84 L.Ed. 788; Miller v. Com’r, 6 Cir., 147 F.2d 189; Stockstrom v. Com’r, supra; Hall v. Com’r, supra; Bush v. Com’r, 2 Cir., 133 F.2d 1005; Williamson v. Com’r, 7 Cir., 132 F.2d 489, McKnight v. Com’r, 8 Cir., 123 F.2d 240; Com’r v. Buck, 2 Cir., 120 F.2d 775. Grantors had the whole title to the property, legal and equitable, the beneficiaries having only the right to enforce the performance of the trust. They had the power under California law to revoke the trust, and thus retake the corpus. Cf. White v. Higgins, 1 Cir., 116 F.2d 312. Although the income was distributable annually to" }, { "docid": "13418274", "title": "", "text": "324 U.S. 108, 111, 65 S.Ct. 508. See also Hall v. Com’r, supra, 150 F.2d page 307 and cases cited. The fact that taxpayers may not necessarily become repossessed of the corpus and the income does not militate against the conclusion that they have the powers of an owner since it is sufficient if they control the family purse strings. See Stockstrom v. Com’r, supra; George v. Comr., supra; Williamson v. Com’r, supra, and cf. Helvering v. Stuart, supra. Nor is the fact material that the powers are reserved as trustee rather than as grantor, when trustee and grantor are the same. In the Helvering v. Clifford case, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, the donor’s powers of control were reserved to himself as trustee and this has been true in other cases also. Foerderer v. Com’r, 3 Cir., 141 F.2d 53; Stockstrom v. Com’r, supra; Miller v. Com’r., supra; Hall v. Com’r, supra. See Article 166-1 of Treasury Regulations 94 and 101, and Section 19.166-1 of Treasury Regulations 103. Cases where this court has had occasion to pass on the scope of Section 22(a), supra (see references to this Section at end of this opinion), in connection with trust income, have not been called to our attention by counsel. But for cases applying the rule of Helvering v. Clifford, supra, in other fact situations, see Stockstrom v. Com’r, supra; Miller v. Com’r, supra; Com’r v. Buck, supra; White v. Higgins, supra; Losh v. Com’r, 10 Cir., 145 F.2d 456; Hall v. Com’r, supra; Williamson v. Com’r, supra; Whiteley v. Com’r, 3 Cir., 120 F.2d 782, certiorari denied 314 U.S. 657, 62 S.Ct. 110, 86 L.Ed. 527. See also “Studies in Federal Taxation”, Third Series by Paul, pp. 166 et seq. See also Central Nat. Bank of Cleveland v. Com’r, 6 Cir., 141 F.2d 352, 153 A.L.R. 542, where power to direct investments was a pivotal factor involving application of the rule in the Clifford case. We are of the view that the trust in this case was, under Section 2280, California Civil Code, a revocable trust" }, { "docid": "16162486", "title": "", "text": "he should act in good faith. It is accordingly my view that the petitioner’s rights in and to the property in question were such as to make the income therefrom his income within the meaning of section 22 (a), as interpreted and applied in the Clifford case. Arnold, J., agrees with this dissent. Kern, J., dissenting: I respectfully dissent from the conclusion of the majority because I am unable to distinguish this case in principle from Louis Stockstrom, 3 T. C. 255; affd., 148 Fed. (2d) 491; certiorari denied, 326 U. S. 719. In that case we held that the income of certain trusts was taxable to the settlor-trustee who held “extraordinarily broad administrative powers over the trust corpus” plus the power to pay immediately to the beneficiaries the trust income or to accumulate the income during their lives, in his absolute discretion. In the instant case the administrative powers of the settlor-trustee were even more “extraordinarily broad” than those held by the settlor-trustee in the Stockstrom case. The settlor-trustee here also has the power in his absolute discretion to either pay immediately the trust income to or for the use of the beneficiaries, or to accumulate it. The trusts, and, consequently, this latter power, cease when the beneficiaries respectively attain the age of 25, and in this respect the instant case differs from the Stockstrom case. However, in my opinion this difference is immaterial. In this case, as in that case, I would conclude that when the “power of the settlor-trustee over the distribution of the trust income is combined with extraordinarily broad administrative powers over the trust corpus, we can not escape the conclusion that the doctrine of Helvering v. Clifford is applicable and the incomes of the trust are taxable to the settlor.” Arnold, J., agrees with this dissent." }, { "docid": "6120666", "title": "", "text": "revoked all of the working sections of the original trust, including all direction as to who should receive its benefits, and substituted new irrevocable provisions which were substantially identical with his wife’s trust indenture. Thus, it was provided that his wife would receive the net income from the trust, if she survived him, for the remainder of her life, with the remainder over to their children, grandchildren and other heirs, and it was also provided that his wife would have the right to invade the corpus for her reasonable care and comfort, or because of her illness or infirmity, or by reason of any other emergency affecting her. The corpus of Mr. Moreno’s trust was also $125,000 fully paid up insurance (on his life). In both trusts there was a clause to the effect that before assigning the policies to the trustees the grantors had directed the insurance companies to use and apply all dividends toward the purchase of paid up additional insurance and the trustees would have no right to exercise the loan and surrender provisions of the policies. The two trust instruments were drawn by the same attorney and George M. Pyle, Assistant Vice President of the St. Louis Trust Company, assisted both grantors in setting up the two trusts. Mr. and Mrs. Moreno examined both trusts before they were executed and the trust officer and the insurance agent, who sold them the insurance policies, advised the settlors of the trusts of the savings in taxes and expenses that would result by reason of their divesting themselves of portions of their property by irrevocable trusts. The spouses filed gift tax returns in connection with the trusts and paid the gift tax due on such returns. The probate inventories of the estate of the couple show an appraisal value for each of a little less than $1,000,000. The Commissioner determined that the two trusts were reciprocal in nature, that each was in consideration of the other and that the corpus of the husband's trust should be included in the gross estate of the decedent wife. The Tax Court declared:" }, { "docid": "8135083", "title": "", "text": "position was not materially changed by the creation of the trusts. All the facts and circumstances authorized a finding of tax liability on the part of petitioners for the income of the two questioned trusts under Section 22(a) and the Clifford Doctrine. Stockstrom v. Commis sioner, 8 Cir., 148 F.2d 491, certiorari denied 326 U.S. 719, 66 S.Ct. 23; Stock-strom v. Commissioner, 8 Cir., 151 F.2d 353; Edison v. Commissioner, 8 Cir., 148 F.2d 810, certiorari denied 326 U.S. 721, 66 S.Ct. 25. In a case of this kind, the Tax Court has full power to appraise all the facts and circumstances and make such final findings and conclusions as are warranted by the record. When such findings and conclusions are supported by the record evidence and are in accordance with law, they are binding on this court. Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670. Certainly, in this case it cannot be said as a matter of law that the Tax Court erred in its appraisal of the facts and circumstances, or that a “clear-cut mistake of law” is apparent. Cf. Stockstrom v. Commissioner, supra. The decision of the Tax Court is affirmed. Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. Findings and opinion of the Tax Court, 4 T.C. 1242. The Trustee was expressly authorized and empowered “To invest and reinvest all funds coming into his hands as such Trustee and to change the form of any investment as frequently as it deems necessary or appropriate. In making investments, the Trustee shall not be restricted by any law now in existence, or here after adopted, regarding the character of investments which Trustees or other Fiduciaries may make, but may at all times invest in such lawful enterprises as the Trustee may deem appropriate, including joint enterprises, stocks, and securities of corporations, either organized or organizing, and any other lawful enterprise.” WALLER, Circuit Judge (dissenting). There was no evidence taken in this case. No fact was in" }, { "docid": "16162481", "title": "", "text": "C. 573; Alex McCutchin, 4 T. C. 1242; and Alma M. Myer, 6 T. C. 77. The instant case is distinguished from the Stockstrom and Funsten cases cited by respondent as the Stochstrom case was distinguished in the Leonard case; i. e., “In the instant proceedings * * * [the trustee] had no powers to cause the shifting of income from one bene ficiary to another such as were present in the Stockstrom or Buck cases.” The respondent in his brief states that under the provision of the trust instrument authorizing use of the net income for the education, maintenance, and support of the beneficiaries the petitioner could use the entire income of the trust for that purpose and thereby relieve himself of his legal obligation to support his children, and that therefore the entire net income of the trust for the taxable year is taxable to him under Helvering v. Stuart, 317 U. S. 154. By paragraph 8 of the trust instrument, the petitioner, as trustee, had the power to use so much of the net income as he deemed necessary for the education, maintenance, or support of his minor children, the beneficiaries of the trust, and, under the law of Tennessee, he had an obligation for their support. W. C. Cartinhour, 3 T. C. 482, and cases cited therein. The case, therefore, is one which would fall within the principle of Helvering v. Stuart, supra, except for section 134 of the Revenue Act of 1943. Section 134 amended section 167 of the Internal Revenue Code by adding subsection (c), which provides that the income of a trust shall not be considered taxable to the grantor under subsection (a) or any other provision of Chapter I merely because such income, in the discretion of another person, the trustee, or the grantor acting as trustee, may be applied or distributed for the support or maintenance of a beneficiary whom the grantor is legally obligated to support or maintain, except to the extent that such income is so applied or distributed. The amendment, by section 134 (b), was made applicable generally" }, { "docid": "16162480", "title": "", "text": "the trust instrument, the accumulated income, if any, and the corpus were payable absolutely, share and share alike, to the beneficiaries at the termination of the trust — that is, on June 20, 1964, with respect to the share of Audrey Lucile Taylor, and when the age of 25 years was attained, with respect to the other beneficiaries. These provisions of the Taylor trust instrument governing the distribution of the income and the corpus of the trust estate, like the provisions governing the management of the trust property, referred to above, are similar to those contained in the trust instrument considered by us in the Leonard case, and here, as there, the grantors retained no power to alter, amend, or revoke, and they reserved no power to direct that the income or principal be paid to beneficiaries other than those named in the trust. Under the authority of the Leonard case, we hold that the petitioner is not taxable with the income here involved under section 22 (a). See also Alice Ogden Smith, 4 T. C. 573; Alex McCutchin, 4 T. C. 1242; and Alma M. Myer, 6 T. C. 77. The instant case is distinguished from the Stockstrom and Funsten cases cited by respondent as the Stochstrom case was distinguished in the Leonard case; i. e., “In the instant proceedings * * * [the trustee] had no powers to cause the shifting of income from one bene ficiary to another such as were present in the Stockstrom or Buck cases.” The respondent in his brief states that under the provision of the trust instrument authorizing use of the net income for the education, maintenance, and support of the beneficiaries the petitioner could use the entire income of the trust for that purpose and thereby relieve himself of his legal obligation to support his children, and that therefore the entire net income of the trust for the taxable year is taxable to him under Helvering v. Stuart, 317 U. S. 154. By paragraph 8 of the trust instrument, the petitioner, as trustee, had the power to use so much of" }, { "docid": "9652147", "title": "", "text": "deemed pertinent in the Clifford case or those following it. In Helvering v. Clifford, supra, the Court said that “the benefits directly or indirectly retained blend so imperceptibly with the normal concepts of full ownership” that the husband was properly found to be owner of the corpus. Since other cases likewise have indicated that taxation of trust income to a trustor depends upon retention of such control as approximates the substance of ownership, we scrutinize the facts in this case for such similarity to ownership. Since the Stockstrom case discloses that the grantor “lodged in himself as trustee a dominion over the trust property far in excess of the normal fiduciary powers under traditional chancery concepts,” and had in addition to numerous and broad named powers, the power to deal with the property in any way as his own, it seems apparent that there is sharp contrast with the rights retained by the trustor in the instant case, and that that case offers little assistance here. The John Stuart case merely refers to Helvering v. Stuart, 317 U. S. 154, as suggesting that control of stock of a company of which the grantors were executors might be an essential element in trust control, a fact found lacking in the John Stuart case. Analyzing, then, the situation here at hand, we find, not the broad and detailed reservations to the settlor of both particular arid general controls over trust corpus or income which were provided by the instruments in many cases considered, but only the following: (a) That the Ward Wheelock stock placed in trust could not, during the life of petitioner or his wife, be sold without the consent of either her or the settlor; and (b) that during her life she could designate who should vote the Ward Wheelock stock placed in trust, while after her death he should hold proxy so to vote the stock. It is to be noted that only after the death of his wife is the petitioner in fact given any power at all. Until her death she alone, and without his consent, could" }, { "docid": "9460237", "title": "", "text": "Brenne-man. The Brennemans adopted three children, appellees herein. Elwin Donald Brenneman and Margaret Zoe Brenneman were adopted in 1931. Barbara Brenneman was adopted in 1939. Christian and Sarah died in 1949 and 1934, respectively. Their older daughter, Bertha Elizabeth, preceded them in death on May 5, 1925. The death of their younger daughter, Nancy Ethel on November 10, 1966, served as the impetus for this litigation. In 1918 the Nysewanders executed the previously mentioned “trust deed” conveying certain commercial property in Des Moines, Iowa, to themselves as trustees. Their daughters were to serve as successor trustees upon Christian and Sarah’s deaths. Provision was made for management of the property, for distribution of the income generated to the settlors and their daughters as beneficiaries, and for termination of the trust on the deaths of the Nysewanders and their daughters and when Elizabeth Anne Hockett, daughter of Bertha, reached the age of thirty-five. Upon termination of the trust the heirs of the daughters, subject to the latters’ power of disposal by will, were to become the owners of the trust property. On July 31, 1923, Christian and Sarah sought to revoke the 1918 trust by conveying the property to their daughter Nancy for a nominal consideration. She immediately reconveyed the property to her parents, who then executed another trust deed again conveying the property to themselves as trustees. This deed expressly reserved to the settlors the power to amend the trust. On May 22, 1925, Sarah and Christian, pursuant to the authority reserved in the 1923 trust, terminated same and executed a new trust. The only terms of the 1925 trust material to this litigation limited the right of succession to the trust property to the “heirs of the body” of Bertha and Elizabeth, respectively. This trust, if effective, would preclude appel-lees from sharing the trust proceeds. The case revolves in large measure around one paragraph, appearing as number ten in footnote 1 supra, which reads as follows: “While both said grantors live, they do hereby expressly reserve the right and privilege to sell, transfer, exchange, incumber or dispose of said premises" }, { "docid": "9615682", "title": "", "text": "withdrawal or revocation or by appointment of himself as beneficiary, he was under no obligation to account to the donor or to the trustee' or any beneficiary or any court or other authority for the application of the trust property so received by him and the trust property should become petitioner’s absolutely. The case is substantially on all fours with Emery v. Commissioner, 1 Cir., 156 F.2d 728, 730. The Emery case presented the question whether the beneficiary of a trust is taxable for the income therefrom under Sec. 22(a) when she had the power to revoke, alter or amend the trust. The court said: “We see no reason why the principles and logic of the Corliss case do not apply to the case at bar. We cannot see any valid reason for distinguishing between a settlor who reserves broad powers over a trust and a beneficiary who receives and retains such powers. The fact that the petitioner did not exercise her powers in her own favor during the taxable years does not make the income any less taxable to her. Stockstrom v. Commissioner, 8 Cir., 1945, 151 F.2d 353, 356. In enacting § 22(a) of the Internal Revenue Code, Congress intended ‘to use its constitutional powers of income taxation to their “full measure.” ’ Helvering v. Stuart, 1942, 317 U.S. 154, 168, 169, 63 S.Ct. 140, 87 L.Ed. 154. It is not necessary that a taxpayer collect the income which is attri butable to him for the purposes of income taxation. Helvering v. Horst, 1940, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655; Helvering v. Eubank, 1940, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81; Helvering v. Clifford, 1940, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. Where his control of a trust is so complete that it must be said that the taxpayer is the owner of the trust’s income, then it is taxable to him. Helvering v. Stuart, supra”. See also Jergens v. Commissioner, 5 Cir., 136 F.2d 497; and Richardson v. Commissioner, 2 Cir., 121 F.2d 1. It is not" }, { "docid": "18934372", "title": "", "text": "in determining the applicability of the doctrine to the facts before us. Moreover, this Court rejected an argument similar to petitioners’ in Estate of Newberry v. Commissioner, 17 T.C. 597 (1951), revd. on other grounds 201 F.2d 874 (3d Cir. 1953). That case was subsequently reversed by the Third Circuit on the grounds that there was no quid pro quo for the transfer — an issue that the Supreme Court in Grace later held was no longer necessary to decide. In support of our opinion in Newberry, we quoted with approval language from Wieboldt v. Commissioner, 5 T.C. 946 (1945), as follows: The significant factor is that each settlor gave the other the right to alter, amend, or terminate the trust. Such power, though not exercisable for the benefit of the grantor, otherwise seems to be a general one. However, it is argued by petitioners that it was exercisable only in a fiduciary capacity and not to the advantage or benefit of the holder. Even if this be so, it remains that the power did carry with it, at least, the right to increase or diminish the beneficial interests of the respective named beneficiaries. As a matter of fact, the respective indentures were altered in that respect. If either grantor had retained such power, along with the right to direct the trustee with respect to the sale, retention, or reinvestment of trust property, although as a trustee, he would have been subject to tax on the income under Stockstrom v. Commissioner, 148 Fed. (2d) 491. Certainly the effect of that case may not be circumvented by a simple expedient on the part of a husband and wife of exchanging the rights with each other. While it may be true that neither petitioner had any beneficial interest in either of the trusts and that each of them was motivated to create a trust by a desire to provide for his (her) children, the power and control over the distribution of income and principal and the power to direct the management of the trust properties, although lost to each under his own" }, { "docid": "9652146", "title": "", "text": "OPINION. Disney, Judge: As seen from the facts above set forth, the Commissioner based the determination of deficiency upon section 22 (a) of the Internal Revenue Code and the powers of the petitioner under the trust instrument to control and manage the trust property and his retention of the substance of ownership of the principal, “due to the provision * * * that delivery of the proxies to vote the stock was to be made, only to your wife or to you, during the lifetime of each of you, and also that no stock * * * could be sold without the consent in writing of your wife or yourself”; and on brief the respondent urges that petitioner retained economic control of his contribution to the trust fund. Reliance is placed primarily upon the principles enunciated in Helvering v. Clifford, 309 U. S. 331, with citation of Stockstrom v. Commissioner, 148 Fed. (2d) 491. John Stuart, 2 T. C. 1103, is quoted. The petitioner argues, in short, that the trusts contain none of the elements deemed pertinent in the Clifford case or those following it. In Helvering v. Clifford, supra, the Court said that “the benefits directly or indirectly retained blend so imperceptibly with the normal concepts of full ownership” that the husband was properly found to be owner of the corpus. Since other cases likewise have indicated that taxation of trust income to a trustor depends upon retention of such control as approximates the substance of ownership, we scrutinize the facts in this case for such similarity to ownership. Since the Stockstrom case discloses that the grantor “lodged in himself as trustee a dominion over the trust property far in excess of the normal fiduciary powers under traditional chancery concepts,” and had in addition to numerous and broad named powers, the power to deal with the property in any way as his own, it seems apparent that there is sharp contrast with the rights retained by the trustor in the instant case, and that that case offers little assistance here. The John Stuart case merely refers to Helvering v." }, { "docid": "18934373", "title": "", "text": "carry with it, at least, the right to increase or diminish the beneficial interests of the respective named beneficiaries. As a matter of fact, the respective indentures were altered in that respect. If either grantor had retained such power, along with the right to direct the trustee with respect to the sale, retention, or reinvestment of trust property, although as a trustee, he would have been subject to tax on the income under Stockstrom v. Commissioner, 148 Fed. (2d) 491. Certainly the effect of that case may not be circumvented by a simple expedient on the part of a husband and wife of exchanging the rights with each other. While it may be true that neither petitioner had any beneficial interest in either of the trusts and that each of them was motivated to create a trust by a desire to provide for his (her) children, the power and control over the distribution of income and principal and the power to direct the management of the trust properties, although lost to each under his own indenture, were regained under the indenture of the other. In the circumstances of this case, it might well be that such rights were the most satisfying ones to the petitioners. Certainly they are among the important attributes of property ownership. [Estate of Newberry v. Commissioner, 17 T.C. at 605.] We see nothing in Grace which leads us to believe this aspect of our decision in Newberry lacks vitality. The facts in this case clearly indicate that the trusts created by Bruno and Bertha were interrelated. All that remains is finding a basis of taxation. Here the powers involved are within those forbidden by sections 2036(a)(2) and 2038(a)(1). Accordingly, we hold that the value of the trust corpora of the trusts created by Bruno and Bertha is includable in their respective estates. The final issue for decision is the fair market value for estate tax purposes of Bruno’s and Bertha’s limited partnership interests in B.B.W., a real estate holding company. Petitioners concede the correctness of the computation by respondent’s expert of the asset value of B.B.W.’s" }, { "docid": "13418269", "title": "", "text": "to last as long as either of the two daughters is living and under 30 years of age, and during its existence all of the trust’s net income is to be distributed, in any event annually to them, or, in case of the death of either of them leaving lawful issue, the latter. Upon termination of the trust its estate vests in the two daughters or, if either of them fail to survive such termination, her lawful issue who may then be living. (The maximum duration of this trust was for a period of about 10% years but it could terminate earlier.) Although the declaration of trust contained no statement that it was irrevocable, no right to change or revoke the trust was reserved. A reading of the record reveals that the trust here created was a family trust and the income was retained in the family group. See Com’r v. Wilson, 7 Cir., 125 F.2d 307, 310; Miller v. Com’r, 6 Cir., 147 F.2d 189; Com’r v. Berolzheimer, 2 Cir., 116 F.2d 628; Hall v. Com’r, 10 Cir., 150 F.2d 304. Nothing in the record forbids the conclusion that grantors had substantial income in each year aside from this trust property. Cf. Stockstrom v. Com’r, 8 Cir., 148 F.2d 491; Com’r v. Buck, 2 Cir., 120 F.2d 775; George v. Com’r, 8 Cir., 143 F.2d 837. Grantors named themselves as trustees and retained the power to name successor trustees. They retained powers of management and control over the trust corpus as though they were absolute owners. They could hold securities in their own names, invest and re-invest the corpus, lend it, sell it, exchange, lease or mortgage, all at prices and upon such terms as they deemed advisable. Their discretion was absolute and uncontrolled and its exercise conclusive on all persons. See Section 2269, Civil Code of California. See also Cox v. Com’r, 10 Cir., 110 F.2d 934, certiorari denied, 311 U.S. 667, 61 S.Ct. 26, 85 L.Ed. 428; Rollins v. Helvering, 8 Cir., 92 F.2d 390, certiorari denied 302 U.S. 763, 58 S.Ct. 409, 410, 82 L.Ed. 592," } ]

[ { "docid": "14180220", "title": "", "text": "both those associations and organizations whose net worth exceeds $5,000,000 and those who employ more than 500 employees, regardless of net worth. 5 U.S.C. § 504(b)(l)(B)(i), (ii). The legislative history of the Act indicates an intention to define “party” identically for both administrative and court proceedings. H.Conf.Rep. No. 96-1434, reprinted in 1980 U.S.Code Cong. & Admin.News 5003, 5011, 5015. Nevertheless, the plain language of the two provisions defining “party” is distinctly different. The provision governing eligibility for fees in civil actions such as this one defines “party” by inclusion, listing three alternative methods of qualification in the disjunctive. By contrast, the provision for fees in administrative proceedings defines party by exclusion, listing two conditions of disqualification in the conjunctive. Congress can speak clearly if it chooses. When the applicable statutory language is clear on its face, as here, it is not for the court to go beyond its terms to search out ambiguity in the legislative history absent rare and exceptional circumstances. See, e.g., Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citations omitted); United States v. Rone, 598 F.2d 564, 569 (9th Cir.1979). No such exceptional circumstances are present here. II. Substantial Justification Having determined that plaintiff is an eligible prevailing party, the court must award it fees, expenses and costs unless it finds that “the position of the United States was substantially justified or that special circumstances make an award unjust.” § 2412(d)(1)(A). Defendant does not argue the existence of any such special circumstances in this case, and the court finds that there are none. Defendant does argue, however, that its position that approval of the Yurok Tribe was a valid reason for its refusal to approve the stream clearance contract with the Hoopa Valley Tribe was substantially justified. The court disagrees. Congress placed the burden of proof on defendant to establish substantial justification. H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4989; Lauritzen v. Secretary of the Navy, 546 F.Supp. 1221, 1226 (C.D.Ca.1982); Citizens Coalition for Block Grant Compliance v. City of" } ]

[ { "docid": "11513882", "title": "", "text": "form agricultural cooperatives. They have often been considered as a unit particularly in determining their assets for insurance and borrowing purposes. Such aggregate treatment would cause the whole cooperative to exceed the [then] $5 million limitation. Reauthorization of EAJA, Hearing Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm, on the Judiciary, 98th Cong., 1st Sess. 17 (April 14, 1983) (emphasis added). While the majority dismisses this piece of legislative history, the Senator’s comment seems to indicate that the net worth of association members should be aggregated unless that type of organization is exempted. An association such as NAWGA functions like an agricultural cooperative whose members join in common economic efforts. However, Congress provided these cooperatives with exemption from net worth limits to avoid aggregation. Because Congress created waivers expressly for certain groups, we can properly presume that Congress did not intend to exempt all associations from the net worth aggregation requirement; expres-sio unius est exclusio alterius. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-68, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993). Congress must thus have intended aggregation of net worth .for other associations. National Truck Equip., 972 F.2d at 674. Presumably, aggregation would still apply to the employee number limit since none of the entities listed in EAJA were granted exemption from that limit. Supporting the above conclusions are the Model Rules adopted by the Administrative Conference of the United States, applicable in agency adjudications, which interpret virtually identical language to that in 28 U.S.C. § 2412(d)(2)(B). See 5 U.S.C. § 504(b)(1)(B) (costs and fees awards in administrative adjudications). Model Rule 0.104(f) states in part: “The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility.” (emphasis added). The commentary to the rule explains that “[t]he intent of Congress in passing the EAJA was to aid truly small entities rather than those that are part of a larger group of affiliated firms.” Administrative Conference of the United States, Equal Access to Justice Act: Agency Implementation, 46 Fed.Reg. 32900, 32903 (1981)." }, { "docid": "23649217", "title": "", "text": "the perceived legislative intent. We have reviewed the language of the statute and find it clear and unambiguous. This conclusion is shared by every other circuit that has interpreted this statute to date. See Rivera v. Becerra, 714 F.2d 887, 893 (9th Cir.1983), cert, denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984); Bowman v. Stumbo, 735 F.2d 192, 197 (6th Cir.1984); and Watkins v. Cantrell, 736 F.2d 933, 938-39 (4th Cir. 1984); see also Mayberry v. Adams, 745 F.2d 729 (1st Cir.1984) (per curiam) (adopting the rationale of Watkins v. Cantrell). The district court’s analysis, therefore, was flawed from the outset. It is a well established law of statutory construction that, absent ambiguity or irrational result, the literal language of a statute controls. United States v. Richards, 583 F.2d 491, 495 (10th Cir.1978). When the meaning of the statute is clear, it is both unnecessary and improper to resort to legislative history to divine congressional intent. As recent ly noted by the Supreme Court, we must start with the assumption that legislative purpose is reflected by the ordinary meaning of the language used in the statute. United States v. Locke, — U.S.-, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985). The district court erred by placing such heavy reliance on legislative history when the literal meaning of the words used are clear and the plain language does not lead to an irrational result. Because we conclude that § 3304(a)(15)(A)(i) is clear and unequivocal on its face, we find no need to dwell on its legislative history. The legislative history is fully reviewed in the district court’s order. 602 F.Supp. at 365-69. See also Rivera v. Becerra, 714 F.2d at 892-93; Bowman v. Stumbo, 735 F.2d at 197-98; Watkins v. Cantrell, 736 F.2d at 939-43. Although the district court characterized defendant’s interpretation of the statute as harsh, 602 F.Supp. at 368, we are aware that the judiciary is not “licensed to attempt to soften the clear import of Congress’ chosen words whenever a court believes those words lead to a harsh result.” Locke, 105 S.Ct. at 1793. Thus," }, { "docid": "5344974", "title": "", "text": "266, 1015 S.Ct. 1673, 68 L.Ed.2d 80 (1981) (“The circumstances of the enactment of particular legislation may persuade a court. that Congress did not intend words of common meaning to have their literal effect.”); cf. Montana v. Clark, 749 F.2d 740, 745 (D.C. Cir.1984) (“plain” provision that conflicts with other plain provisions necessitates examination of legislative history). We first examine the committee reports and hearings on the Act. We also examine a definitional provision of “party” that appears elsewhere in the Act, Congress’s treatment of subsection (d) since its passage, and the broad policies underlying the Act and its judicial interpretation. Cf. Henry v. George Hyman Construction Co., 749 F.2d 65, 75-77 (D.C.Cir.1984) (examining structure of statute, legislative history, and underlying policies of relevant provision); Interstate Natural Gas Association of America v. FERC, 716 F.2d 1, 10-15 (D.C.Cir.1983) (same), cert. denied, — U.S. -, 104 S.Ct. 1615, 80 L.Ed.2d 144 (1984). Finally, we review the arguably relevant decisions of other federal courts of appeals. We conclude that an entity must meet the requirements of both subsection (ii) and subsection (iii) if it is to receive fees under subsection (d). B. The Committee Reports The conference report’s explanation of who is eligible to be a “prevailing party” under subsection (d) appears to contradict the face of the statute: The Senate bill defines prevailing parties eligible for an award to include individuals and certain entities, except: ... in the case of entities, those whose net worth at the initiation of the adversarial proceeding exceeded $5 million or who had more than 500 employees. Charitable tax exempt organization so designated under 501(c)(3) of the Internal Revenue Code ... are exempt from the monetary ceiling. The conference substitute adopts the Senate provision. H.R. [Conference] Rep. No. 1434, 96th Cong., 2d Sess. 26 (1980) U.S.Code Cong. & Admin.News 1980, 5015 (emphasis added). The report’s excepting from eligibility for fee awards those entities with net worths greater than $5 million or with more than 500 employees is equivalent to the affirmative statement, “Those eligible to receive fee awards are those with less than $5 million in" }, { "docid": "4438377", "title": "", "text": "the Act’s coverage to those parties it determined might otherwise be discouraged from vindicating their rights against the government for financial reasons. Specifically, it limited eligibility to (i) an individual whose net worth did not exceed $1,000,000 at the time the civil action was filed, (ii) a sole owner of an unincorporated business, or a partnership, corporation, association or organization whose net worth did not exceed $5,000,000 at the time the civil action was filed, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a), may be a party regardless of the net Worth of such organization or cooperative association, or (iii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization having not more than 500 employees at the time the civil action was filed; 28 U.S.C. § 2412(d)(2)(B) (emphasis added). It is uncontested that Respondent’s net worth does not exceed five million dollars and that its employees number less than five hundred. However, the Board contends that since Respondent is affiliated with the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, its assets and employees should be aggregated with the assets and employees of the International Union for the purposes of determining eligibility. Since the International has over five million dollars in assets, but employs less than 500 persons, under a literal reading of the statute, respondent would nevertheless remain eligible for fees, even if aggregated with its International. The Board, however, urges us to further interpret the Act so as to require eligible parties to have less than 500 employees and less than five million dollars in assets on the grounds that such a reading is more consistent with the legislative history of the Act. As Petitioner points out, there is support in the legislative history for the position that Congress intended to exclude from eligibility those entities whose net worth exceeds five million or who have more" }, { "docid": "12249187", "title": "", "text": "language of our decisions was neither consistent nor pellucid.” . Lee I, 758 F.2d at 1085. . 815 F.2d 1381, 1383 (10th Cir.1987). . 42 U.S.C. § 4332(2)(C) (1982). . 40 C.F.R. § 1508.3 (1987) (emphasis added). . 40 C.F.R. § 1508.13. . Save Our Wetlands, 711 F.2d at 644 (citing Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973)). . This case did not involve \"a convoluted regulation, difficult to interpret”. Southern Or. Citizens Against Toxic Sprays v. Watt, 556 F.Supp. 155, 157 (D.Or.), modified sub nom. 720 F.2d 1475 (9th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984). . Parties eligible for EAJA fees include: (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141(a)), may be a party regardless of the net worth of such organization or cooperative association. 28 U.S.C. § 2412(d)(2)(B) (Supp. Ill 1985). During the legislative hearings for the EAJA, Senator Domenici, one of the bill’s main sponsors, stated the purpose of this provision: The basic problem this bill seeks to overcome is the inability of many Americans to combat the vast resources of the Government in administrative adjudication. In the usual case, a party has to weigh the high cost of litigation or agency proceedings against the value of the rights to be asserted. Individuals and small businesses are in far too many cases forced to knuckle under to regulations even though they have a direct and substantial impact because they" }, { "docid": "15608306", "title": "", "text": "as an eligible party provided that its “net worth ... did not exceed $7,000,000 at the time the action was filed.” 28 U.S.C. § 2412(d)(2)(B). The issue of Brunswick's net worth at the time this action was filed has been hotly contested by the parties, with each side preferring affidavits of respected and experienced accountants who attest with professional certainty that, under “generally accepted accounting principles” Brunswick’s net worth was under $7,000,000 (according to plaintiff’s accountants) and over $20,000,000 (according to defendants’ accountants) on July 15, 1985. The difficulty here was aptly framed by counsel for the Government at oral argument when he explained in answer to a question from the Court that a city’s “net worth” is simply not defined under “generally accepted accounting principles.” This is because the term “net worth” is not normally used with reference to the financial status of a municipality. The legislative history of § 2412(d)(2)(B) offers little definitional clarification, stating only that “net worth” is calculated by subtracting total liabilities from total assets. H.Rep. No. 96-1418, 96th Cong., 2d Sess. at 15 (1980), reprinted in 1980 U.S. Code Cong. & AcLNews 4984, 4994. However, certain language from the House Report on the 1985 amendment to the EAJA lends support to the plaintiff's view that “restricted assets” (those not generally available to meet the payment of debts) ought not to be considered in determining net worth. Congress’ intent in placing financial limits on a party’s eligibility to recover fees under the EAJA was to ensure that the benefit of fee awards would go only to those parties whose financial condition might otherwise deter them from asserting their rights. In short, Congress tailored the law to protect those unable to afford to litigate against the Government. Thus, the 1980 House Report states that the purpose of the net worth requirement is to “limit the bill's applications to those persons and small businesses for whom costs may be a deterrent to vindicating their rights.” 1980 U.S.Code Cong. & Ad.News 4958, 4994. Likewise, when Congress amended the definition of a party to include local units of government," }, { "docid": "4438410", "title": "", "text": "since the language of § 2412(d)(2)(B) is unambiguous on its face, it is not the court’s function to look beyond the literal language absent compelling circumstances. See also Tulalip Tribes of Washington v. Federal Energy Regulatory Commission, 732 F.2d 1451, 1454 (9th Cir.1984) (\"Although a court is not absolutely forbidden from considering the legislative history when construing a statute which is plain on its face ... it is 'a step to be taken cautiously’.’’) (citing Rivera v. Becerra, 714 F.2d 887, 893 (9th Cir.1983), cert. denied, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Donovan, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984). Resolution of this issue of statutory construction is, however, unnecessary given our conclusion that we would find respondent eligible under either construction of the EAJA. See Discussion, infra. . According to the Directory of National Unions and Employee Associations, 1979, U.S. Dept, of Labor, Bureau of Labor Statistics, 1980 (Bulletin 2079), at 4, local, independent unions represented approximately 1.6 percent of the total 1978 union membership of the United States. In all likelihood, Congress was cognizant of this basic structural character of the American labor unions when EAJA was passed. The Court notes that Congress was certainly aware of the institutional structure of union when it enacted the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401, et. seq., which explicitly recognizes the distinctions between local, intermediate, and national/international organizations, and in part, concerns the use of trusteeship powers by international unions over locals. See 29 U.S.C. §§ 461-66. . As of 1983, 15,598,000, out of a total of 18,-634,000, (or 83.7% of) labor union members in the United States were connected or affiliated with unions reporting assets of five million dollars or more. Data reported in LEO TROY & NEIL SHEFLIN, UNION SOURCE BOOK (1985). . See e.g., International Brotherhood of Electrical Workers, AFL-CIO, et al., 121 NLRB 143, 146-149 (1958) (\"The overwhelming weight of judicial authority ... is that a local union is a legal entity apart from its international and that it is not a mere" }, { "docid": "5344975", "title": "", "text": "subsection (ii) and subsection (iii) if it is to receive fees under subsection (d). B. The Committee Reports The conference report’s explanation of who is eligible to be a “prevailing party” under subsection (d) appears to contradict the face of the statute: The Senate bill defines prevailing parties eligible for an award to include individuals and certain entities, except: ... in the case of entities, those whose net worth at the initiation of the adversarial proceeding exceeded $5 million or who had more than 500 employees. Charitable tax exempt organization so designated under 501(c)(3) of the Internal Revenue Code ... are exempt from the monetary ceiling. The conference substitute adopts the Senate provision. H.R. [Conference] Rep. No. 1434, 96th Cong., 2d Sess. 26 (1980) U.S.Code Cong. & Admin.News 1980, 5015 (emphasis added). The report’s excepting from eligibility for fee awards those entities with net worths greater than $5 million or with more than 500 employees is equivalent to the affirmative statement, “Those eligible to receive fee awards are those with less than $5 million in net worth and with fewer than 500 employees.” The statement in the report that the “or” that joins subsections (ii) and (iii) should be given a conjunctive meaning is in contrast to the disjunctive meaning of “or” that would typically be inferred from the faee of the statute. In addition, the portion of the report quoted above states that section 501(c)(3) organizations are exempt from the net-worth limit, but does not also exempt them from the number-of-employees limit. If the subsections are to be read disjunctively, drawing such a distinction would be without effect, since the net-worth exemption would mean section 501(c)(3) organizations qualified regardless of the number of employees. The general rule is to interpret the language of legislators so as to give effect to all that language if such a result is possible through a reasonable interpretation. See United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed.2d 615 (1955) (courts should interpret statutes so as to give meaning to every word); accord National Soft Drink Association v. Block," }, { "docid": "5344984", "title": "", "text": "describes this provision thus: The Senate bill defines prevailing parties eligible for such awards as including individuals and certain entities, except: ... in the case of entities, those whose net worth at the initiation of the adversial proceeding exceeded $5 million or who had more than 500 employees. Charitable tax exempt organizations so designated under 501(c)(3) ... are exempt from the monetary ceiling. The conference substitute adopts the Senate provision. H.R. [Conf.] Rep. No. 1434, at 22, U.S.Code Cong. & Admin.News 1980, 5011. This report language is extremely similar to that used to describe subsection (d) in the conference report. See supra p. 1085. The statutory language of this provision, which differs from subsection (d), clearly requires that an organization meet both the net-worth and the employee limits to qualify for fees. The conference report’s language is consistent with this interpretation. The meaning of section 504(b)(1)(B) therefore seems clear. Unfortunately for our present purposes, however, the implications of section 504(b)(l)(B)’s language for the intended meaning of subsection (d) are more ambiguous. The House report did state that interpretation of subsection (d) should be informed by section 504(b)(1)(B). See H.R.Rep. No. 1418, at 18 (subsection (d) “explained under” section 504(b)). In addition, the conference report’s language is virtually identical in describing the two provisions, and one might argue that one should therefore ascribe an identical meaning to the two provisions. Nonetheless, Congress chose materially different language in the Act to define “party” in administrative proceedings. One might thereby infer — and do so from an action of the Congress as a whole in passing a statute with particular language rather than from the statements of committees constituting only a portion of Congress’s members — that the choice of different language was meant to indicate two different definitions of “party.” Congress could plausibly have wished to be more generous in awarding fees in judicial proceedings than in administrative proceedings, and have defined “party” accordingly in the two instances. In the face of these contradictory indications of Congress’s intent with respect to the relationship between section 504(b)(1)(B) and subsection (d), we can draw" }, { "docid": "11513869", "title": "", "text": "prevailing party is eligible for fees and expenses only if he meets the statutory definition of a party: (d)(2) For purposes of this subsection— (B) “party” means ... (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed; except .that an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of Agricultural Marketing Act (12 U.S.C. 1141(j)(a)), may be a party regardless of the net worth of such organization or cooperative association * * *. 28 U.S.C. § 2412(d)(2) (emphasis added). NAWGA urges us to accept the district court’s construction of § 2412(d)(2) that a prevailing association is a “parly” if it meets the provision’s bright-line rule for eligibility, and nothing more. Although USDA concedes that “neither the language of the statute nor the legislative history explicitly directs aggregation of the net worth and number of employees of an association’s members,” it nevertheless contends that structure of § 2412(d)(2)(B) betrays an implicit aggregation requirement that is applicable here. As support for its construction, USDA points out • that § 2412(d)(2) explicitly exempts agricultural cooperatives and nonprofit organizations from EAJA’s net worth limit. Citing Senator DeConeini’s post-enactment explanation of the provision, USDA characterizes this treatment of agricultural cooperatives and non-profits as a waiver of the statute’s “implicit net worth aggregation requirement.” From these “exceptions” and the statutory canon expressio unius est exclusio, USDA concludes that “§ 2412(d)(2)(B)(ii) should be construed to exempt from the aggregation requirement only the ... types of associations specifically referred to by Congress, and no others.” We examine first the language and structure of EAJA to determine the proper meaning of the term “party.” Section 2412(d) provides that attorneys’ fees shall be awarded to prevailing parties and explicitly includes in the definition" }, { "docid": "5344983", "title": "", "text": "be unable to obtain fees under the Act even if those entities qualified for fees under the networth provision. D. Section 50fs Definition of “Party” In addition to the definition of a “party” eligible to receive fees for the purposes of judicial proceedings at issue here, the Act contains a structurally analogous definition of a prevailing “party” for the purposes of awarding fees in administrative proceedings: “[Pjarty” ... is an individual, partnership, corporation, association, or public or private organization other than an agency, but excludes (i) any individual whose net worth exceeded $1,000,000 at the time the adversary adjudication was initiated, and any ... organization whose net worth exceeded $5,000,000 at the time the adversary adjudication was initiated, except that an organization described in section 501(c)(3) ... may be a party regardless of [its] net worth ..., and (ii) any sole owner of an ... organization, having more than 500 employees---- 5 U.S.C. § 504(b)(1)(B) (1982) (emphasis added). We note that this definition is exclusive rather than, as in subsection (d), inclusive. The conference report describes this provision thus: The Senate bill defines prevailing parties eligible for such awards as including individuals and certain entities, except: ... in the case of entities, those whose net worth at the initiation of the adversial proceeding exceeded $5 million or who had more than 500 employees. Charitable tax exempt organizations so designated under 501(c)(3) ... are exempt from the monetary ceiling. The conference substitute adopts the Senate provision. H.R. [Conf.] Rep. No. 1434, at 22, U.S.Code Cong. & Admin.News 1980, 5011. This report language is extremely similar to that used to describe subsection (d) in the conference report. See supra p. 1085. The statutory language of this provision, which differs from subsection (d), clearly requires that an organization meet both the net-worth and the employee limits to qualify for fees. The conference report’s language is consistent with this interpretation. The meaning of section 504(b)(1)(B) therefore seems clear. Unfortunately for our present purposes, however, the implications of section 504(b)(l)(B)’s language for the intended meaning of subsection (d) are more ambiguous. The House report did" }, { "docid": "14180218", "title": "", "text": "any contentions regarding the amount of tribal liabilities. The Act does not specify on its face by what method the court should value assets. Accordingly, the court must look to other indications of Congress’ intent. The legislative history makes clear that Congress intended that the historical cost of acquisition of assets may be used. S.Rep. No. 96-974, 96th Cong., 2d Sess. 17 (Sept. 19, 1980), U.S.Code Cong. & Admin.News 1980, p. 4953. Plaintiff proposes in its reply brief that the court ascertain the acquisition costs of its timber from Congress’ grant of compensation of $1.25 per acre to Indians of California who were promised but did not receive land in the 1850’s, 25 U.S.C. § 653, approximately contemporaneous with the establishment of the Hoopa Valley Reservation. Defendant has not contested these acquisition figures, even though it has had ample time to seek leave to respond since plaintiff filed its reply. Accordingly, the court finds that $1.25 per acre may be used to determine acquisition costs. The Hoopa Valley Reservation contains approximately 53,211 acres of uncut forest. At a cost of $1.25 per acre, the value of plaintiff’s sole asset is clearly well below the statutory limit of $5,000,000. Thus, even assuming that plaintiff has no liabilities which would reduce its net worth below the value of its sole asset, the timber, plaintiff is an eligible party because it is an organization or association whose net worth does not exceed $5,000,000. The court also finds that plaintiff is an eligible “party” under the alternative definition provided by the Act: an “association, or organization, having no more than 500 employees at the time the civil action was filed.” § 2412(b)(2)(B)(iii). Plaintiff’s uncontradicted affidavit states that the Tribe had only 71 employees when this action was filed, and has not had more than 189 employees at any time since. Thus, plaintiff falls within the plain and unambiguous terms of the statute. The court is aware that the comparable provision under the Equal Access for Justice Act for award of fees and expenses in administrative as opposed to court proceedings defines “party” to exclude" }, { "docid": "4438378", "title": "", "text": "net worth does not exceed five million dollars and that its employees number less than five hundred. However, the Board contends that since Respondent is affiliated with the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, its assets and employees should be aggregated with the assets and employees of the International Union for the purposes of determining eligibility. Since the International has over five million dollars in assets, but employs less than 500 persons, under a literal reading of the statute, respondent would nevertheless remain eligible for fees, even if aggregated with its International. The Board, however, urges us to further interpret the Act so as to require eligible parties to have less than 500 employees and less than five million dollars in assets on the grounds that such a reading is more consistent with the legislative history of the Act. As Petitioner points out, there is support in the legislative history for the position that Congress intended to exclude from eligibility those entities whose net worth exceeds five million or who have more than 500 employees. We need not reach, however, the latter issue of whether the employee and asset requirements of § 2412(d) should be read in the disjunctive or conjunctive because we would find that Respondent is an eligible party under either construction. If a literal interpretation is followed, it is unnecessary to reach the issue of aggregation. Since the International employs less than 500 persons, Respondent is eligible regardless of whether it is aggregated with the International. If, on the other hand, the Act requires Respondent to satisfy both the employee and asset requirements, we conclude that a local’s eligibility should be determined without reference to its National, International or other similar affiliation. In construing a statute, the Court’s objective is to carry out the intent of Congress. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975); Hughes Air Corp. v. Pub. Utilities Comm’n, 644 F.2d 1334, 1337 (9th Cir. 1981). Here, the EAJA and its legislative history is silent as to the specific question of aggregation of labor." }, { "docid": "4438409", "title": "", "text": "do not find that rule 0.104(f), which calls for aggregation of an applicant and its affiliates, based on a corporate model, a persuasive indication of Congress’ intent with respect to the eligibility issue presented in this case. . See e.g., H.R.Rep. No. 1434, 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.Code Cong. & Ad.News 5003, 5011, 5015, indicating that Congress intended to define eligible parties for purposes of judicial proceedings the same as it defined eligible parties for purposes of administrative proceedings. Under EAJA’s comparable provision for administrative proceedings, eligi ble parties are defined to exclude entities whose net worth exceeds five million dollars as well as entities who employ over 500 persons. 5 U.S.C. § 504(b)(l)(B)(i), (ii). Guided by this legislative history, the fourth circuit, in NLRB v. Para-Chem Southern, 711 F.2d 1051 (4th Cir.1983), determined that an applicant must meet both the employee number and the net worth requirements to be eligible to recover under section 2412(d)(2)(B). However, as was noted in Hoopa Valley Tribe v. Watt, 569 F.Supp. 943, 946 (N.D.Cal.1983), since the language of § 2412(d)(2)(B) is unambiguous on its face, it is not the court’s function to look beyond the literal language absent compelling circumstances. See also Tulalip Tribes of Washington v. Federal Energy Regulatory Commission, 732 F.2d 1451, 1454 (9th Cir.1984) (\"Although a court is not absolutely forbidden from considering the legislative history when construing a statute which is plain on its face ... it is 'a step to be taken cautiously’.’’) (citing Rivera v. Becerra, 714 F.2d 887, 893 (9th Cir.1983), cert. denied, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Donovan, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984). Resolution of this issue of statutory construction is, however, unnecessary given our conclusion that we would find respondent eligible under either construction of the EAJA. See Discussion, infra. . According to the Directory of National Unions and Employee Associations, 1979, U.S. Dept, of Labor, Bureau of Labor Statistics, 1980 (Bulletin 2079), at 4, local, independent unions represented approximately 1.6 percent of the total 1978 union membership" }, { "docid": "1024855", "title": "", "text": "was not made within the 120-day period prescribed by 29 U.S.C. § 816(b), argues that the limitation period set forth in the statute is not jurisdictional. The jurisdictional question presented by the City has not been addressed by this court. The Third Circuit, however, has ruled on this precise issue. In Lehigh Valley Manpower Program v. Donovan, 718 F.2d 99 (3d Cir.1983), the court held that the failure of the Secretary to make a final determination within 120 days after becoming aware of a potential violation of a regulation prohibiting nepotism in hiring was barred by section 816(b). Id. at 102. The court rejected the conclusion of the ALJ that the time limit set forth in section 816(b) was advisory. Id. In footnote three of its brief, the Department of Labor asks us not to follow Lehigh because that court “ignored the applicable legislative history.” We begin our analysis of section 816(b) by noting that in using the word “shall” Congress appears to require the Secretary to make a final determination concerning the merits of a complaint within 120 days. Nevertheless, the Department of Labor urges us not to give the word “shall” its plain meaning. In addressing a similar contention, we stated as follows: “Although a court is not absolutely forbidden from considering the legislative history when construing a statute which is plain on its face, Heppner v. Alyeska Pipeline Service Co., 665 F.2d 868, 872 (9th Cir.1981) it is ‘a step to be taken cautiously.’ ” Tulalip Tribes of Washington v. FERC, 732 F.2d 1451, 1454 (9th Cir.1984). Statutory language is generally construed according to the plain meaning of the words used by Congress “absent a clearly expressed legislative intention to the contrary.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). We agree with the Fifth Circuit’s observation that “[u]se of the word ‘shall’ generally indicates a mandatory intent unless a convincing argument to the contrary is made.” Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir.1977). The legislative history supports a mandatory interpretation of" }, { "docid": "11513871", "title": "", "text": "of a party any “association, ... the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed.” § 2412(d)(2)(B). This language is clear and unambiguous. Nowhere does it limit EAJA’s application only to associations whose members individually are eligible for EAJA fees. Instead, it imposes a ceiling only on the net worth and size, of the association itself. It was open to Congress to include additional limitations on eligibility, such as the aggregation rule that USDA advocates, but Congress did not do so. We are unpersuaded, moreover, that EAJA’s special eligibility rule for agricultural cooperatives and non-profit organizations is evidence of an implicit aggregation rule. Neither the statute nor its legislative history suggest that the special eligibility rule for agricultural cooperatives and non-profits was motivated by concerns about ineligibility resulting from the aggregation of employees and assets. Indeed, this rule does not even address the subject of “aggregation”; instead, it allows a single agricultural cooperative or a single nonprofit organization to qualify for an EAJA fee award regardless of the singular net worth of that entity. Neither are we persuaded, on the basis of Senator DeConcini’s statement, that this special eligibility rule is to be construed as a. waiver of some implicit aggregation requirement. As the Supreme Court has made clear, post-enactment legislative history does not control a statute’s interpretation. Pierce v. Undefwood, 487 U.S. 552, 566, 108 S.Ct. 2541, 2550-51, 101 L.Ed.2d 490 (1988). In sum, we are unable to discern in the unadorned words of § 2142(d)(2)(B) ah unwritten aggregation requirement. As we have stressed repeatedly, we must “presume that a legislature says in a statute what it means and means in a statute what it says.” U.S. v. Meeks, 69 F.3d 742, 744 (5th Cir.1995) (citing Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). Notwithstanding this cardinal canon of statutory construction — that the words of a statute will be given their plain meaning absent ambiguity — USDA" }, { "docid": "10245854", "title": "", "text": "the Declaration of Kenneth G. Weigel states that the NLBMDA, the CWLRA and Buchanan had a net worth of less than $7,000,000 and fewer than 500 employees in 1998. Absent from the declaration is any mention of American Bayridge Corporation’s net worth or number of employees. The EAJA does not define the term “party,” except to include for eligibility: any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed * * *. 28 U.S.C. § 2412(d)(2)(B). The legislative histoiy notes that Congress intended “party” to be identical both for the EAJA and its equivalent in the Administrative Procedure Act, 5 U.S.C. § 504 (1994). See H.R. Rep. No. 96-1418, at 18, (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4997. The relevant provision of the Administrative Procedure Act defines party as “a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes * * *.” 5 U.S.C. § 551(3). Thus, although the definition of party in 28 U.S.C. § 2412 does not contain the explicit reference that 5 U.S.C. § 504 does, the clearly expressed intention of Congress is to limit awards to parties who actually appear in the action. When a waiver of sovereign immunity is at issue, a court must be particularly mindful to effectuate the stated congressional purpose. Applicants argue that any party who funds litigation is entitled to an award of fees, citing Unification Church v. Immigration and Naturalization Service, 762 F.2d 1077 (D.C. Cir. 1985). Even if Unification Church were controlling, it is inapposite to the instant case because it involved a situation where all of the applicants were parties to the case in which they sought attorney’s fees. Id. at 1079. The substantive case" }, { "docid": "4438408", "title": "", "text": "of $17,015.10 in attorney fees and $614.58 in costs. Accordingly, IT IS HEREBY ORDERED that petitioner pay respondent the amount of $17,629.68 within 25 days of the date of the original August 5, 1985 Order. IT IS SO ORDERED. . In addition to providing direct financial relief to eligible parties, Congress also hoped the EAJA would encourage agencies to carefully evaluate claims and only pursue those which are not weak or tenuous. Congress further hoped that the EAJA would serve to refine public policy by encouraging \"greater precision, efficiency and fairness in the interpretation of statutes and in the formulation and enforcement of government regulations.” Spencer v. Nat'l Labor Relations Bd., 712 F.2d 539, 550 (D.C.1983); H.R.Rep. No. 1418, 96th Cong.2d Sess. 9, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984. . Petitioner also relies on the Administrative Conference of the United States’ suggested rules for implementation of the EAJA, promulgated primarily to promote uniformity of procedure among agencies. These suggested rules are not binding on the agencies, much less the courts, and we do not find that rule 0.104(f), which calls for aggregation of an applicant and its affiliates, based on a corporate model, a persuasive indication of Congress’ intent with respect to the eligibility issue presented in this case. . See e.g., H.R.Rep. No. 1434, 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.Code Cong. & Ad.News 5003, 5011, 5015, indicating that Congress intended to define eligible parties for purposes of judicial proceedings the same as it defined eligible parties for purposes of administrative proceedings. Under EAJA’s comparable provision for administrative proceedings, eligi ble parties are defined to exclude entities whose net worth exceeds five million dollars as well as entities who employ over 500 persons. 5 U.S.C. § 504(b)(l)(B)(i), (ii). Guided by this legislative history, the fourth circuit, in NLRB v. Para-Chem Southern, 711 F.2d 1051 (4th Cir.1983), determined that an applicant must meet both the employee number and the net worth requirements to be eligible to recover under section 2412(d)(2)(B). However, as was noted in Hoopa Valley Tribe v. Watt, 569 F.Supp. 943, 946 (N.D.Cal.1983)," }, { "docid": "1024856", "title": "", "text": "a complaint within 120 days. Nevertheless, the Department of Labor urges us not to give the word “shall” its plain meaning. In addressing a similar contention, we stated as follows: “Although a court is not absolutely forbidden from considering the legislative history when construing a statute which is plain on its face, Heppner v. Alyeska Pipeline Service Co., 665 F.2d 868, 872 (9th Cir.1981) it is ‘a step to be taken cautiously.’ ” Tulalip Tribes of Washington v. FERC, 732 F.2d 1451, 1454 (9th Cir.1984). Statutory language is generally construed according to the plain meaning of the words used by Congress “absent a clearly expressed legislative intention to the contrary.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). We agree with the Fifth Circuit’s observation that “[u]se of the word ‘shall’ generally indicates a mandatory intent unless a convincing argument to the contrary is made.” Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir.1977). The legislative history supports a mandatory interpretation of the 120-day time limitation in section 816(b). The Senate Report noted that: “[i]n some cases grievances have been either ignored, or there have been interminable delays.” S.Rep. No. 95-891, 95th Cong., 2nd Sess. 42, reprinted in 1978 U.S.Code Cong. & Admin.News 4480 at 4522. In summarizing the provisions of the proposed law, the Senate Report states: “[a]fter a complaint is filed the Secretary must make a determination on the complaint on the merits of the case within 120 days.” Id. at 4523 (emphasis added). The Department of Labor has ignored this portion of the statute’s legislative history, relying instead on the comments of Congressman Obey during the debate on his amendment on the floor of the House of Representatives. During those proceedings, the following colloquy occurred: Mr. Hawkins. Mr. Chairman, we have seen the amendment, we accept the amendment. If the gentlemen would further yield, do I understand from the gentleman from Wisconsin [Mr. Obey] that if the determination is not made in a specified time it shall not affect the Secretary’s jurisdiction in the" }, { "docid": "23649216", "title": "", "text": "court. B. The Offset Requirements The language of section 3304(a)(15)(A)(i) specifies that if a base period employer contributes to social security, then unemployment benefits must be offset by social security benefits. The language of the statute is clear and does not contain any qualification which would prevent its application when an employee qualifies for social security benefits while working for a different employer than his base period employer. The language of the statute, standing alone, compels only one interpretation: that social security benefits offset unemployment benefits if the base period employer makes social security contributions. The district court qualified the language of the statute by restricting its application to a base period employer who contributed to the social security benefits of the unemployment compensation applicant prior to retirement. This was accomplished by finding the language of the statute ambiguous, then analyzing the legislative history, discerning the statute’s underlying purpose or intent, concluding that the literal meaning of the statutory language and congressional intent are at odds, and then qualifying the statute so as to accommodate the perceived legislative intent. We have reviewed the language of the statute and find it clear and unambiguous. This conclusion is shared by every other circuit that has interpreted this statute to date. See Rivera v. Becerra, 714 F.2d 887, 893 (9th Cir.1983), cert, denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984); Bowman v. Stumbo, 735 F.2d 192, 197 (6th Cir.1984); and Watkins v. Cantrell, 736 F.2d 933, 938-39 (4th Cir. 1984); see also Mayberry v. Adams, 745 F.2d 729 (1st Cir.1984) (per curiam) (adopting the rationale of Watkins v. Cantrell). The district court’s analysis, therefore, was flawed from the outset. It is a well established law of statutory construction that, absent ambiguity or irrational result, the literal language of a statute controls. United States v. Richards, 583 F.2d 491, 495 (10th Cir.1978). When the meaning of the statute is clear, it is both unnecessary and improper to resort to legislative history to divine congressional intent. As recent ly noted by the Supreme Court, we must start with the assumption that legislative" } ]

[ { "docid": "17469656", "title": "", "text": "States v. Nolan, 910 F.2d 1553, 1560 (7th Cir.1990). See United States v. Antoine, 906 F.2d at 1382 (no due process violation can occur without evidence of harm to the appellant). We stated that prejudice occurs only when the unavailability of a transcript prevents the appellate court from determining whether there is reversible error, and added that “lack of a transcript does not necessarily mean that review is impossible.” United States v. Nolan, 910 F.2d at 1560. In Kimmons’ situation, we are not required to decide an appeal without a transcript, for Kimmons had received a copy of the transcript before the filing of his final brief. Kimmons does not allege that five of his six convictions are wrong on the merits, but challenges only the conspiracy conviction. Even if we were to find that a due process violation occurred, the remedy sought by Kimmons is extreme given the one substantive challenge to the convictions. In United States v. Pratt, the court noted that it declined to hold the nine-month transcript delay unconstitutional because of a lack of “exacerbating factors” and “in light of the remedies that appellant [sought]: reversal of judgment and either entry of judgment for him or new trial.” 645 F.2d at 91. Our reasoning in this case parallels the Pratt decision. This court has not previously addressed the issue of whether a due process violation occurs when belated receipt of a trial transcript causes a delay in appeal. Other courts have considered the matter and recognize that excessive delay in the appellate process can amount to a deprivation of due process. United States v. Pratt, 645 F.2d at 89. See also, DeLancy v. Caldwell, 741 F.2d at 1247; Rheuark v. Shaw, 628 F.2d at 302. In Rheuark, the Fifth Circuit determined that the right to appeal without unreasonable delay is similar to the right to a speedy trial. Thus, the Rheuark court adopted the factors established in the Supreme Court speedy trial case Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether delay in the appellate process constituted a" } ]

[ { "docid": "4118756", "title": "", "text": "the district court denied the petition, noting that the proper means of challenging state convictions was through § 2254 rather than § 2255. In its order, the district court did observe, however, that the extreme appellate delay in Smith’s case appeared to give rise to some questions as to the fundamental fairness of his situation. In his resentencing brief, Smith picked up on this point and argued that the delay in adjudicating the government’s appeal constituted a denial of due process. The district court agreed and ordered Smith’s release on March 15, 1995. Now, the government again appeals under 18 U.S.C. § 3742(b). II. THE RIGHT TO A SPEEDY APPEAL The speedy trial guarantee of the Sixth Amendment applies only to proceedings in the trial court. See Burkett v. Cunningham, 826 F.2d 1208, 1219-21 (3d Cir.1987); 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 18.5(c) (1984). Our sister circuits have held, however, that a similar guarantee applies to criminal appeals via the Due Process Clause. See, e.g., Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett, 826 F.2d at 1221-22. In so holding, these courts have first recognized that there is no due process right to an appeal at all, but that an appeal must nonetheless comport with due process “if a State has created appellate courts as ‘an integral part’ ” of its criminal justice system. Harris, 15 F.3d at 1558 (quoting Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985)). These courts have then adopted the speedy trial analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), with slight modifications, as the framework for evaluating delay in the appellate context. See Harris, 15 F.3d at 1558-59; Simmons, 898 F.2d at 868; Burkett, 826 F.2d at 1222; see also United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert." }, { "docid": "4118757", "title": "", "text": "1538, 1558 (10th Cir.1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett, 826 F.2d at 1221-22. In so holding, these courts have first recognized that there is no due process right to an appeal at all, but that an appeal must nonetheless comport with due process “if a State has created appellate courts as ‘an integral part’ ” of its criminal justice system. Harris, 15 F.3d at 1558 (quoting Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985)). These courts have then adopted the speedy trial analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), with slight modifications, as the framework for evaluating delay in the appellate context. See Harris, 15 F.3d at 1558-59; Simmons, 898 F.2d at 868; Burkett, 826 F.2d at 1222; see also United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980) (adopting Barker analysis in dicta), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981). In Barker, the Supreme Court identified four factors for courts to balance in determining whether a trial delay is unconstitutional: “Length 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. at 2192. According to the Court, none of these factors could be termed “either a necessary or sufficient condition,” and courts would be best served by engaging in a “difficult and sensitive balancing process.” Id. at 533, 92 S.Ct. at 2193. With respect to the fourth factor, prejudice, the Court further directed lower courts to consider three interests of the defendant “which the speedy trial right was designed to protect[:] ... (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that" }, { "docid": "9603046", "title": "", "text": "recognized that excessive delay in processing appeals can violate due process. See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1169 (3rd Cir.1995); United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1230, 127 L.Ed.2d 574 (1994); Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Cody v. Henderson, 936 F.2d 715, 719 (2nd Cir.1991). In evaluating appellate delay claims, courts follow the test set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), to determine whether due process was satisfied. Although the issue in Barker was whether the defendant was denied his right to a speedy trial, courts find the criteria set out in that case generally applicable. The factors to consider are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Id. Applying the first factor, we agree with Hawkins that the four-year delay was lengthy. Not every inordinate delay in processing an appeal, however, amounts to a denial of due process. Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981). As to the second factor, the reason for delay is not entirely clear from the record below. Apparently, the clerk’s office misplaced the appeal and did not locate it until Hawkins made an inquiry, so Hawkins clearly was not to blame for the delay. As to the third factor, Hawkins did ultimately pursue appellate review, although he did not inquire about the status of his appeal until more than two years had elapsed since it was filed. Although the first three factors weigh in Hawkins’s favor, he must also show prejudice from the delay to establish a due process violation. See Tucker, 8 F.3d at 676. With respect to the fourth factor, courts have established three categories of potential prejudice resulting from appellate delay: “(1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of the appeal, and (3) impairment" }, { "docid": "22251507", "title": "", "text": "of the MCM that was in effect at the time of Moreno’s trial. . See also United States v. Daulton, 45 M.J. 212, 216-18 (C.A.A.F.1996); United States v. Smart, 21 M.J. 15, 18-21 (C.M.A.1985). . Moreno’s co-actor was acquitted of rape on August 19, 1999. The following day, an article appeared in Stars and Stripes captioned “Okinawa Marine innocent of rape.” On August 27, 1999, Stars and Stripes reported that Moreno's trial would proceed despite the co-actor's acquittal. . Latimore v. Spencer, 994 F.Supp. 60, 67 (D.Mass.1998) (\"[T]he First Circuit examines such cases on a case by case basis applying factors similar to those employed in Barker.\")', Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir.1987); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984); Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981); United States v. Smith, 94 F.3d 204, 207 (6th Cir.1996); United States v. Kimmons, 917 F.2d 1011, 1015 (7th Cir.1990); United States v. Hawkins, 78 F.3d 348, 350-51 (8th Cir.), cert. denied, 519 U.S. 844, 117 S.Ct. 126, 136 L.Ed.2d 76 (1996); United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993)(en banc), cert. denied, 510 U.S. 1182, 114 S.Ct. 1230, 127 L.Ed.2d 574 (1994); Harris v. Champion (Harris I), 938 F.2d 1062, 1068 (10th Cir. 1991); Harris v. Champion (Harris II), 15 F.3d 1538, 1559 (10th Cir.1994); Harris v. Champion (Harris III), 48 F.3d 1127 (10th Cir.1995). . Rheuark, 628 F.2d at 303 (\"[N]ot every delay in the appeal of a case, even an inordinate one, violates due process.”). . In the speedy trial context, \"extreme cases of delay would produce a strong presumption of prejudice to the ability of a party to defend itself at trial____\" United States v. Smith, 94 F.3d 204, 211 (6th Cir.1996) (citing Doggett v. United States, 505 U.S. 647, 655-58, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Circuit courts have split on whether the Doggett" }, { "docid": "14908418", "title": "", "text": "37 (C.A.A.F.2003). . See United States v. Williams, 55 M.J. 302, 305 (C.A.A.F.2001) (\"Appellant has a right to a speedy post-trial review of his case.”). . See United States v. Dunbar, 31 M.J. 70, 73 (C.M.A.1990) (calling delay in forwarding the record of trial to the appellate court \"the least defensible of all” post-trial delay). . Diaz, 59 M.J. at 37-38. . Id. at 39. . Id. at 38. . See generally Campiti v. Matesanz, 186 F.Supp.2d 29, 43 (D.Mass.2002)(\"Although the Supreme Court has not addressed appellate delay in the due process context, seven of the Courts of Appeals have held that an appellate delay may constitute a due process violation under some circumstances.”), aff'd, 333 F.3d 317 (1st Cir.), cert. denied, - U.S. -, 124 S.Ct. 346, 157 L.Ed.2d 238 (2003). . United States v. Smith, 94 F.3d 204, 207 (6th Cir.1996). . See, e.g., id.; United States v. Hawkins, 78 F.3d 348, 350 (8th Cir.1996); Hill v. Reynolds, 942 F.2d 1494, 1497 (10th Cir.1991); United States v. Antoine, 906 F.2d 1379 (9th Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.1984). . 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). . Simmons v. Beyer, 44 F.3d 1160, 1170 (3d Cir.1995) (quoting Coe v. Thurman, 922 F.2d 528, 531 (9th Cir.1990)). See also Taylor v. Hargett, 27 F.3d 483, 486 n. 2 (10th Cir.1994) (attributing to the state the time during which the Oklahoma Court of Criminal Appeals deliberated on the case). . Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . Id. at 209 (quoting Doggett v. United States, 505 U.S. 647, 657, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). . Harris v. Champion, 15 F.3d 1538, 1560 (10th Cir.1994). . Smith, 94 F.3d at 209. . Coe, 922 F.2d at 531. . Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . See, e.g., Simmons v. Reynolds, 898 F.2d at 868; Mathis v." }, { "docid": "3841542", "title": "", "text": "Additionally, [an appellant] has a constitutional right to a timely review guaranteed him under the Due Process Clause.”). We are also cognizant of this court’s power under Article 66(c), UCMJ, to grant sentence relief for excessive post-trial delay even in the absence of actual prejudice. See United States v. Tardif 57 M.J. 219, 224 (C.A.A.F. 2002). Where post-trial delay is determined to be excessive and unexplained, we must decide whether the unexplained delay is “facially unreasonable.” See United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005). If we find unexplained delay to be facially unreasonable, this triggers a due process review under Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See id. at 83 (applying the following factors to determine whether the appellant’s due process rights have been violated: (1) length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of the right to timely appellate review; and (4) the resulting prejudice to the appellant from the delay). In Jones, the Court of Appeals for the Armed Forces, after applying the four Barker v. Wingo due process review factors to the timeliness of the post-trial and appellate processing of the appellant’s case, found that the unreasonably lengthy and unexplained delay prejudiced the appellant as a matter of law. Id. at 85-86. Key to our superior court’s finding of prejudice to the appellant was their determination that the appellant demonstrated “ongoing prejudice.” Id. at 84-85. The Jones court concluded that where the length of delay is so short that it is determined to be facially reasonable, the rest of the analysis under Barker v. Wingo is unnecessary. Id. at 83 (quoting Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.2004)). If we conclude that the length of the delay is “facially unreasonable,” we must balance the length of the delay with the other three factors. Id. Nonetheless, where the length of delay is determined to be facially unreasonable, the reasons for the delay, or the absence of demand for speedy review, or the absence of prejudice to an appellant can mitigate the" }, { "docid": "14908419", "title": "", "text": "Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.1984). . 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). . Simmons v. Beyer, 44 F.3d 1160, 1170 (3d Cir.1995) (quoting Coe v. Thurman, 922 F.2d 528, 531 (9th Cir.1990)). See also Taylor v. Hargett, 27 F.3d 483, 486 n. 2 (10th Cir.1994) (attributing to the state the time during which the Oklahoma Court of Criminal Appeals deliberated on the case). . Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . Id. at 209 (quoting Doggett v. United States, 505 U.S. 647, 657, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). . Harris v. Champion, 15 F.3d 1538, 1560 (10th Cir.1994). . Smith, 94 F.3d at 209. . Coe, 922 F.2d at 531. . Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . See, e.g., Simmons v. Reynolds, 898 F.2d at 868; Mathis v. Hood, 937 F.2d 790, 794 (2d Cir.1991). . United States v. Haney, 45 M.J. 447, 448 (C.A.A.F.1996). . See, e.g., United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.1995) (holding that relief for appellate delay requires a showing of prejudice, such as a demonstration that the delay impaired the appeal or the defense in the event of retrial); Harris, 15 F.3d at 1563-64 (recognizing three typical forms of prejudice arising from appellate delay: (1) impairment of the grounds for appeal; (2) anxiety supported by a colorable state or federal claim that would warrant reversal of the conviction or a reduction of sentence; and (3) oppressive incarceration). . See Art. 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). . See generally United States v. Tardif, 57 M.J. 219 (C.A.A.F.2002). CRAWFORD, Chief Judge (dissenting): Petitioner has raised the issue of post-trial delay before the court below and that issue is currently pending before the Court of Criminal Appeals. This Court abuses its authority and its -writ jurisdiction by directing the lower court to rule, and suggesting how" }, { "docid": "4118765", "title": "", "text": "the modified Barker framework to the instant case reveals that there was no constitutional violation. A. Length of Delay The length-of-delay factor “is actually a double enquiry.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992). First, the “length of the delay is to some extent a triggering mechanism,” and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, “there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. at 2192. Second, if the constitutional inquiry has been triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong “presumption of evidentiary prejudice” affecting the fourth Barker factor. Doggett, 505 U.S. at 655-57, 112 S.Ct. at 2692-94. Barker instructs that “the length of delay that will provoke [a constitutional] inquiry is necessarily dependent upon the peculiar circumstances of the case,” 407 U.S. at 530-31, 92 S.Ct. at 2192, although the Supreme Court in Doggett has also observed that courts have generally found trial delays approaching a year or more to be enough to trigger the Barker analysis. See Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. at 2691 n. 1. Appellate delays are yet another matter, and most courts evaluating such delay have continued to apply the first factor on a case-by-case basis. See, e.g., United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir.1994) (ten-year delay “is ‘extreme’ by any reckoning”); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (six years “was clearly excessive”); United States v. Johnson, 732 F.2d 379, 382 (4th Cir.) (two-year delay “is in the range of magnitude” for triggering inquiry), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984). The Tenth Circuit, though, has taken the bold approach, holding that a two-year appellate delay will create a rebuttable presumption that the constitutional threshold has been crossed. See Harris, 15 F.3d at 1559-60. Although following the Tenth Circuit would create a" }, { "docid": "16735222", "title": "", "text": "process right to a speedy appeal. In Burkett I, we applied the criteria articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether appellate delay had violated due process. 826 F.2d at 1222; accord Harris, 15 F.3d at 1559; Tucker, 8 F.3d at 676; Johnson, 732 F.2d at 381-82; Rheuark, 628 F.2d at 303. In Barker, the Supreme Court identified four factors to balance when examining an alleged speedy trial violation: “Length 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. at 2192. Although the interests at stake before trial and before appeal obviously differ, they are sufficiently similar to warrant the same general approach. See Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973) (Barker factors may carry “different weight where a defendant is incarcerated after conviction”); Cody, 936 F.2d at 719 (“Barker factors should not be applied uncritically” in speedy appeal context). The 13-year delay in this case is an outrage, and that Simmons’ appeal as of right “slipped through the cracks” is shameful. See Burkett I, 826 F.2d at 1225 (five and one-half year delay in sentencing and appeal warranted discharge); cf. Harris, 15 F.3d at 1560 (two-year appellate delay ordinarily gives rise to a presumption of inordinate delay). The subsequent period of litigation marking Simmons’ efforts to obtain a direct appeal apparently took on a life of its own, without regard for fundamental notions of fairness and due process. The district court’s finding that the reason for the delay was ineffective assistance by appointed trial counsel and the Public Defender is clearly correct. See Simmons, 689 F.Supp. at 443-44. We recognize that “nominal representation on appeal violates due process because ‘a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.’” Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (quoting Evitts, 469 U.S. at 396, 105 S.Ct. at 836). Responsibility for this delay cannot" }, { "docid": "22251519", "title": "", "text": "to a speedy appellate review evolves from an appellant’s due process rights under the Fifth Amendment. Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994). When examining these constitutional rights, we must look at the text, the history, the tradition behind the constitutional amendments, prior precedent, and practical consequences. See County of Sacramento v. Lewis, 523 U.S. 833, 857, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (must consider “history and tradition”); United States v. Mara, 410 U.S. 19, 37, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (must examine the teachings of history and tradition). The federal courts have recognized that generally “there is no due process right to an appeal at all, but that an appeal must nonetheless comport with due process ‘if a State has created appellate courts as an integral part’ of its criminal justice system.” Smith, 94 F.3d at 206-07 (quoting Harris, 15 F.3d at 1558) (internal quotation marks omitted). The courts considering this issue have conducted a case-by-case basis analysis, applying a modified version of the four factors of Barker to determine whether the delay in an appeal violated an appellant’s due process rights to a speedy post-trial review. These four factors are: (1) length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal; and (4) prejudice to appellant. Barker, 407 U.S. at 529-33, 92 S.Ct. 2182. In Barker, the Supreme Court adopted a “balancing test” approach in evaluating these factors in speedy trial violations “in which the conduct of both the prosecution and the defendant are weighed.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The “balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Id. None of these four factors is “a necessary or sufficient condition to finding of a deprivation of the right of speedy trial.” Id. at 533, 92 S.Ct. 2182. Courts must engage in the “difficult and sensitive balancing process” of all of the factors in evaluating whether a post-trial delay violates an appellant’s due process. See id. at 533, 92 S.Ct. 2182. In Toohey" }, { "docid": "1789721", "title": "", "text": "He bases this argument on decisions by other courts which have drawn an analogy between the right to a timely appeal and the right to a speedy trial. See, e.g., United States v. Hawkins, 78 F.3d 348, 350 (8th Cir.1996); United States v. Mohawk, 20 F.3d 1480, 1486 (9th Cir.1994); Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980). We reject the argument and differ from these courts. We explain why. A due process claim about delays on appeal is not the same as a Sixth Amendment speedy trial claim. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a case under the Sixth Amendment, the Supreme Court identified four criteria, of which prejudice is only one, to determine when the right to a speedy trial is violated. Id. at 530, 92 S.Ct. 2182. The Court held that it is possible to have a violation of the speedy trial right without a specific showing of prejudice. Id. at 533, 92 S.Ct. 2182. By contrast, there is no Sixth Amendment speedy trial claim to be made as to appeals, with the possible exception, not involved here, of interlocutory appeals. See United States v. Loud Hawk, 474 U.S. 302, 313-17, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); see also United States v. Smith, 94 F.3d 204, 206 (6th Cir.1996) (“The speedy trial guarantee of the Sixth Amendment applies only to proceedings in the trial court.”). The right of appeal is statutory, and the grant is subject to due process requirements. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In Barker, three categories of potential prejudice were identified: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense might be impaired. 407 U.S. at 532, 92 S.Ct. 2182. Those courts that have accepted the analogy between pretrial delay and appellate delay have adopted this inquiry almost whole cloth and looked for three kinds of potential prejudice from appellate delay: “(1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of" }, { "docid": "22251480", "title": "", "text": "and appeal. See United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.2004) (conclusions of law are reviewed under the de novo standard); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.2003) (speedy trial issues, as conclusions of law, are reviewed de novo). In conducting this review we have adopted the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005); Toohey, 60 M.J. at 102. While Barker addressed speedy trial issues in a pretrial, Sixth Amendment context, its four-factor analysis has been broadly adopted for reviewing post-trial delay due process claims. Once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of [due process].”); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (“[N]o one factor is dispositive and all are to be considered together with the relevant circumstances.”). We analyze each factor and make a determination as to whether that factor favors the Government or the appellant. See Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980) (calling for an ad hoc evaluation of the four Barker factors). We then balance our analysis of the factors to determine whether there has been a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“[C]ourts must still engage in a difficult and sensitive balancing process.”). No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding. Id. With this structure as our guide, we turn to an analysis of the four factors as they arise in Moreno’s case. 1." }, { "docid": "9595268", "title": "", "text": "a result of the final judgment entered by the district court and Ferreira’s timely filing of a notice of appeal pursuant to 28 U.S.C. § 1291. III. As we have noted, “[i]n determining whether a defendant’s right to a speedy trial has been violated, this court reviews questions of law de novo and questions of fact under the clearly erroneous standard.” United States v. Robinson, 455 F.3d 602, 607 (6th Cir.2006). Criminal defendants possess a Sixth Amendment right to a speedy trial. U.S. Const, amend. VI. Courts must balance four factors to determine whether a delay violated the Sixth Amendment: (1) the “[ljength of the delay”; (2) “the reason for the delay”; (3) “the defendant’s assertion of his right”; and (4) “prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). “No one factor is determinative; rather, they are related factors which must be considered together with such other circumstances as may be relevant.” Robinson, 455 F.3d at 607. A. The length of the delay “is a threshold requirement, and if the delay is not uncommonly long, judicial examination ceases.” Id.; see also Barker, 407 U.S. at 530, 92 S.Ct. 2182 (“The length of the delay is to some extent a triggering mechanism.”). The delay must “cross[] the threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Girts v. Yanai, 600 F.3d 576, 588 (6th Cir.2010) (quoting Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). If it does not, then “judicial examination ceases.” Robinson, 455 F.3d at 607. A delay of one year or more crosses the threshold and triggers analysis of the remaining Barker factors. Id. The district court found that the delay in this case was “nearly three years” long — from September 13, 2005 until August 25, 2008, or thirty-five months — a length that satisfies the threshold requirement. We therefore continue our analysis of the remaining three Barker factors. B. Courts assign “different weights ... to different reasons” for the government’s delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. “Governmental delays motivated" }, { "docid": "9603045", "title": "", "text": "dispute that he had sold cocaine to McKinney and Quinn, resting instead on the defense that the government had entrapped him. The jury found Hawkins guilty on all five counts, and the district court sentenced him on March 15, 1991. On March 25, 1991, Hawkins’s trial counsel filed a notice of appeal. For reasons that are not entirely clear, the appeal was not processed by the clerk’s office until May 18, 1995. Hawkins raises several issues on appeal. First, he contends that his due process rights were violated due to the delay in processing his appeal. He also alleges violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500, and brings an ineffective assistance of counsel claim. Finally, he claims that the district court erred in denying him a sentence reduction for acceptance of responsibility. II. Due Process Claim Although the Supreme Court has never explicitly acknowledged a due process right to a speedy appeal, a number of courts of appeals have recognized that excessive delay in processing appeals can violate due process. See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1169 (3rd Cir.1995); United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1230, 127 L.Ed.2d 574 (1994); Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Cody v. Henderson, 936 F.2d 715, 719 (2nd Cir.1991). In evaluating appellate delay claims, courts follow the test set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), to determine whether due process was satisfied. Although the issue in Barker was whether the defendant was denied his right to a speedy trial, courts find the criteria set out in that case generally applicable. The factors to consider are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Id. Applying the first factor, we agree with Hawkins that the four-year delay was lengthy. Not every inordinate delay in processing an appeal," }, { "docid": "4118766", "title": "", "text": "at 2192, although the Supreme Court in Doggett has also observed that courts have generally found trial delays approaching a year or more to be enough to trigger the Barker analysis. See Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. at 2691 n. 1. Appellate delays are yet another matter, and most courts evaluating such delay have continued to apply the first factor on a case-by-case basis. See, e.g., United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir.1994) (ten-year delay “is ‘extreme’ by any reckoning”); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (six years “was clearly excessive”); United States v. Johnson, 732 F.2d 379, 382 (4th Cir.) (two-year delay “is in the range of magnitude” for triggering inquiry), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984). The Tenth Circuit, though, has taken the bold approach, holding that a two-year appellate delay will create a rebuttable presumption that the constitutional threshold has been crossed. See Harris, 15 F.3d at 1559-60. Although following the Tenth Circuit would create a clear benchmark for courts in this circuit, we find it unnecessary to do so at this time. The government concedes that the three-year delay in Smith’s case was sufficient to trigger further inquiry, and we agree. As for the weight to be assigned to the appellate delay, we should note that three years, while unusual and unfortunate, is still shorter than some of the more egregious documented instances. In Muwwakkil v. Hoke, 968 F.2d 284 (2d Cir.), cert. denied, 506 U.S. 1024, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992), the appellate delay lasted thirteen years; in Mohawk, it was ten years; in Simmons, it was six. Although the delay here was certainly significant, we must look further into the reasons for such delay, the next Barker criterion. B. Reason for Delay The government puts forth a rather unassailable reason for the delay: to allow the appellate panel to have waited for the more authoritative decisions of the en banc Sixth Circuit and then the Supreme Court. As explained in Barker, “different weights should be assigned" }, { "docid": "22251520", "title": "", "text": "determine whether the delay in an appeal violated an appellant’s due process rights to a speedy post-trial review. These four factors are: (1) length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal; and (4) prejudice to appellant. Barker, 407 U.S. at 529-33, 92 S.Ct. 2182. In Barker, the Supreme Court adopted a “balancing test” approach in evaluating these factors in speedy trial violations “in which the conduct of both the prosecution and the defendant are weighed.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The “balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Id. None of these four factors is “a necessary or sufficient condition to finding of a deprivation of the right of speedy trial.” Id. at 533, 92 S.Ct. 2182. Courts must engage in the “difficult and sensitive balancing process” of all of the factors in evaluating whether a post-trial delay violates an appellant’s due process. See id. at 533, 92 S.Ct. 2182. In Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.2004), this Court recognized that servicemembers have a due process right to speedy appellate review and used modified Barker factors to evaluate whether appellate delay violates an appellant’s due process rights. See also Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37-38 (C.A.A.F.2003) (servicemembers have a right to have their cases reviewed in a timely fashion). Courts have viewed appellate delays differently than trial delays. “[N]ot every delay in the appeal of a case, even an inordinate one, violates due process.” Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980). Most federal courts have not created a “benchmark” for triggering a presumption of prejudice. But see Harris, 15 F.3d at 1559-60 (Tenth Circuit has held that a two-year appellate delay will create a rebuttable presumption that the constitutional threshold has been crossed). See also Barker, 407 U.S. at 523, 92 S.Ct. 2182 (Court specifically rejected establishing a specified time period to bring a defendant to trial). The federal courts evaluate the peculiar circumstances of each" }, { "docid": "1789720", "title": "", "text": "length of the delay. See Luciano-Mosquera, 63 F.3d at 1158; see also id. at 1158 & n. 8 (describing approximately two-year delay in furnishing transcripts as “appalling” but rejecting defendant’s claim for lack of prejudice); Pratt, 645 F.2d at 91 (declining to hold a nine-month delay unconstitutional, “at least in the absence of exacerbating factors”). There can be no per se rules on the length of delay because this court, in the exercise of its supervisory authority, is bound by the rule that a showing of prejudice is ordinarily needed for due process claims. See United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993) (en banc) (“[A] federal court may not exercise its supervisory powers to reverse a conviction absent a showing of prejudice.”). ü. Garcia’s Other Arguments Garcia also argues that he was prejudiced in ways which, in our view, are simply not cognizable on a due process claim in this context. Specifically, he argues that due to the delay, he has suffered anxiety and “oppressive incarceration” during the pendency of his appeal. He bases this argument on decisions by other courts which have drawn an analogy between the right to a timely appeal and the right to a speedy trial. See, e.g., United States v. Hawkins, 78 F.3d 348, 350 (8th Cir.1996); United States v. Mohawk, 20 F.3d 1480, 1486 (9th Cir.1994); Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980). We reject the argument and differ from these courts. We explain why. A due process claim about delays on appeal is not the same as a Sixth Amendment speedy trial claim. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a case under the Sixth Amendment, the Supreme Court identified four criteria, of which prejudice is only one, to determine when the right to a speedy trial is violated. Id. at 530, 92 S.Ct. 2182. The Court held that it is possible to have a violation of the speedy trial right without a specific showing of prejudice. Id. at 533, 92 S.Ct. 2182. By contrast, there is no Sixth Amendment speedy" }, { "docid": "22251481", "title": "", "text": "2182 (“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of [due process].”); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (“[N]o one factor is dispositive and all are to be considered together with the relevant circumstances.”). We analyze each factor and make a determination as to whether that factor favors the Government or the appellant. See Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980) (calling for an ad hoc evaluation of the four Barker factors). We then balance our analysis of the factors to determine whether there has been a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“[C]ourts must still engage in a difficult and sensitive balancing process.”). No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding. Id. With this structure as our guide, we turn to an analysis of the four factors as they arise in Moreno’s case. 1. Length of the delay Initially, unless the delay is facially unreasonable, the full due process analysis will not be triggered. Toohey, 60 M.J. at 102. We conduct a case-by-case analysis to determine if a given delay is facially unreasonable. Id. at 103. In this case we conclude that the overall period of post-trial review and appeal, 1,688 days, is facially unreasonable and thus we will proceed to the remaining Barker factors. 2. Reasons for the delay Under this factor we look at the Government’s responsibility for any delay, as well as any legitimate reasons for the delay, including those attributable to an appellant. In assessing the reasons for any particular delay, we examine each stage of the post-trial period because the reasons for the delay may be different at each stage and different parties are responsible for the timely completion of each segment. The 490 days between the end of trial and the convening authority’s action is excessive for the post-trial processing of this ease. The processing in this segment is completely within the control" }, { "docid": "22251479", "title": "", "text": "the delay is unreasonable, Moreno’s due process rights have not been violated. The Supreme Court has recognized “the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); see also Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 38 (C.A.A.F.2003). “[A]n appeal that is inordinately delayed is as much a ‘meaningless ritual,’ Douglas [v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)], as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings.” Harris v. Champion (Harris II), 15 F.3d 1538, 1558 (10th Cir.1994). This court has recognized that convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions. Toohey, 60 M.J. at 101; Diaz, 59 M.J. at 37-38. We review de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal. See United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.2004) (conclusions of law are reviewed under the de novo standard); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.2003) (speedy trial issues, as conclusions of law, are reviewed de novo). In conducting this review we have adopted the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005); Toohey, 60 M.J. at 102. While Barker addressed speedy trial issues in a pretrial, Sixth Amendment context, its four-factor analysis has been broadly adopted for reviewing post-trial delay due process claims. Once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation. Barker, 407 U.S. at 533, 92 S.Ct." }, { "docid": "22251521", "title": "", "text": "v. United States, 60 M.J. 100, 102 (C.A.A.F.2004), this Court recognized that servicemembers have a due process right to speedy appellate review and used modified Barker factors to evaluate whether appellate delay violates an appellant’s due process rights. See also Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37-38 (C.A.A.F.2003) (servicemembers have a right to have their cases reviewed in a timely fashion). Courts have viewed appellate delays differently than trial delays. “[N]ot every delay in the appeal of a case, even an inordinate one, violates due process.” Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980). Most federal courts have not created a “benchmark” for triggering a presumption of prejudice. But see Harris, 15 F.3d at 1559-60 (Tenth Circuit has held that a two-year appellate delay will create a rebuttable presumption that the constitutional threshold has been crossed). See also Barker, 407 U.S. at 523, 92 S.Ct. 2182 (Court specifically rejected establishing a specified time period to bring a defendant to trial). The federal courts evaluate the peculiar circumstances of each case to determine whether the length of the delay provokes a constitutional inquiry. “[Ujnless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, ‘there is no necessity for inquiry into the other factors that go into the balance.’ ” Smith, 94 F.3d at 209 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). “[I]f the constitutional inquiry has been triggered, the length of delay is itself balanced with the other factors” in the Barker analysis. Id. In extreme circumstances, the length of delay may give rise to a strong “presumption of evidentiary prejudice” to a defendant’s ability to defend himself at trial. See Doggett v. United States, 505 U.S. 647, 655-57, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). But see Smith, 94 F.3d. at 212-13 (“We deem Doggett relevant, but we hold that the presumption of prejudice, if any, in this case of three-year appellate delay has been clearly rebutted.”) (emphasis added). B. Applying the Barker Analysis to This Case 1. Length of the Delay In this" } ]

[ { "docid": "23523932", "title": "", "text": "a leather jacket, a Class B violation of supervised-release conditions. See U.S.S.G. § 7B1.1(a)(2). The court revoked the terms and sentenced Quinones to 18 months’ imprisonment for each violation, to be served consecutively. Quinones appeals, contending that the district court lacked the discretion to sentence him to consecutive terms of imprisonment following the revocation of his concurrent terms of supervised release. We review the district court’s interpretation of sentencing provisions de novo. United States v. Granderson, 969 F.2d 980, 982 (11th Cir.1992). Discussion This question is one of first impression in this circuit, but not elsewhere. In United States v. Cotroneo, 89 F.3d 510 (8th Cir.), cert. denied,-U.S.-, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996), the Eighth Circuit resolved this precise issue against the defendant. The court reasoned that 18 U.S.C. § 3584(a), which governs imposition of multiple terms of imprisonment, permits a court to order multiple terms to run consecutively. Section 3584(a) does not exclude from its operation the imposition of imprisonment terms following the revocation of terms of supervised release. The court found, moreover, no statutory or Sentencing Guidelines provision that constricted the discretion that § 3584(a) confers upon the district court in these circumstances. The Eighth Circuit accordingly concluded that consecutive sentences for violation of conditions of two terms of supervised release are permissible. Quinones argues to the contrary that 18 U.S.C. § 3583(e), which governs modification and revocation of terms of supervised release, narrows the district court’s discretion at sentencing following a supervised-release violation. That section provides a laundry list of how a court may modify the conditions or length of a term of supervised release; Quinones posits that the list does not include the power to alter the concurrent or consecutive nature of the term of supervised release. Quinones therefore concludes that the district court could not change the original concurrent nature of his terms of supervised release. Alternatively, Quinones asserts that by analogy to U.S.S.G. § 5G1.2(d), only concurrent sentences could be imposed in his circumstances. That section provides that sentences imposed on multiple counts of conviction must run concurrently unless a consecutive sentence" } ]

[ { "docid": "22348743", "title": "", "text": "67, 71 (4th Cir.1994), we determined that § 5G1.3(c) should be enforced as if it were a guideline, in spite of the “Policy Statement” notation preceding it. The court’s discretion to determine whether a defendant’s sentence should be concurrent or consecutive under 18 U.S.C. §§ 3584 and 3553(a) is limited by § 5G1.3(c). United States v. Whiting, 28 F.3d 1296, 1310 (1st Cir.1994). In Wiley-Dunaway, we remanded the case for the district court to “consider” the methodology suggested by § 5G1.3(c) and to attempt to fashion a “reasonable incremental punishment.” Wiley-Dunaway, 40 F.3d at 72 (quoting USSG § 5G1.3(c), comment, (n.3) and citing United States v. Redman, 35 F.3d 437, 441-42 (9th Cir.1994) (the “sentencing court must attempt to calculate the reasonable incremental punishment ... under the commentary methodology, but may use another method if there is a reason to abandon the suggested penalty”)). Since Wiley-Dunaway did not involve a probation violation, Application Note 4 of § 5G1.3, which became effective on November 1, 1993, was not applicable to the defendant’s case. However, the application note clearly applies here. It states: If the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release revoked, the sentence for the instant offense should be imposed to be served consecutively to the term imposed for the violation of probation, parole, or supervised release in order to provide an incremental penalty for the violation of probation, parole, or supervised release (in accord with the policy expressed in §§ 7B1.3 and 7B1.4). USSG § 5G1.3(c), comment, (n.4). Section 7B addresses probation and supervised release violations. In particular, Application Note 5 of § 7B1.3 states: Subsection (f) provides that any term of imprisonment imposed upon the revocation of probation or supervised release shall run consecutively to any sentence of imprisonment being served by the defendant. Similarly, it is the Commission’s recommendation that any sentence of imprisonment for a criminal offense that is imposed after revocation of probation or supervised release be run consecutively to any term of imprisonment imposed" }, { "docid": "22863927", "title": "", "text": "concluded that “[bjecause § 3584(a) is not limited, in terms, to the imposition of sentence at the conclusion of trial (as distinguished from the imposition of sentence after revocation of a defen dant’s supervised release) ... the District Court retains discretion to impose either concurrent or consecutive sentences after revocation of a defendant’s supervised release.” Id. at 513. In contrast, the court continued, § 3624(e) “governs the trial court’s initial imposition of terms of supervised release, not its subsequent sentencing discretion upon revocation of that supervised release.” Id. Accordingly, the Eighth Circuit held that § 3624(e) does not preclude consecutive terms of imprisonment upon revocation of supervised release. See id. Instead, the court concluded, “ § 3584(a) allow[s] the District Court to impose consecutive rather than concurrent sentences upon revocation of ... concurrent terms of supervised release.” Id. We agree. Accordingly, we hold that the district court had the authority to impose consecutive sentences upon Johnson when it revoked his supervised release. B. Section 3584(a) gives district courts discretion in choosing concurrent or consecutive terms of imprisonment. See 18 U.S.C. § 3584(a). In exercising that discretion, § 3584(b) directs only that sentencing courts consider the factors set forth in § 3553(a). See 18 U.S.C. § 3584(b). Those factors include: the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford ádéquate deterrence, protect the public, and provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most-efficient manner; the kinds of sentences available; pertinent guidelines; pertinent policy statements; the need to avoid unwanted sentence disparities; and the need to provide restitution. See 18 U.S.C. § 3553(a). We presume in non-departures, unless some contrary indication exists, that a district court properly considered the pertinent statutory factors. Statutory changes and the sentencing guidelines have'dramatically altered the sentencing landscape. Congress never intended, however, for sentencing to become a hyper-technical exercise devoid of common sense. The district court heard each of these" }, { "docid": "22911783", "title": "", "text": "(b). There is no require ment that the district court state a “specific reason” for a consecutive sentence, and the relevant Guidelines and policy statements presume that multiple terms of imprisonment imposed at different times are consecutive. U.S.S.G. § 7B1.3(f); 18 U.S.C. § 3584(a); United States v. McCree, 299 Fed.Appx. 481, 483 (6th Cir.2008) (unpublished opinion). “Where, as here, the court makes generally dear the rationale under which it has imposed the consecutive sentence ..., it does not abuse its discretion.” United States v. Owens, 159 F.3d 221, 230 (6th Cir.1998) (emphasis added). We are therefore satisfied that the district court did not abuse its discretion in imposing a consecutive sentence. C. Substantive Reasonableness Given Johnson’s lenient initial sentence for his original conviction, the severity of the violations of the terms of his supervised release, and the § 3553(a) factors considered by the district court in sentencing, the length of Johnson’s sentence — thirty-six months of imprisonment, incorporating a fifteen-month upward departure — is not substantively unreasonable. See, e.g., United States v. Brown, 501 F.3d 722, 726 (6th Cir.2007) (affirming imposition of ten-month upward departure upon revocation of supervised release following multiple drug and alcohol-related violations). “[We] may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Committing a violent crime and using a firearm constituted serious breaches of the trust invested in Johnson by virtue of his supervised-release sentence, and the relevant policy statement endorsed departing upward upon revocation in light of the downward departure applied to his original sentence. We conclude, therefore, that “takfing] into account the totality of the circumstances,” including the fifteen-month upward departure, the district court did not abuse its discretion in sentencing Johnson to thirty-six months of imprisonment. Bolds, 511 F.3d at 581. III. CONCLUSION Reviewing for procedural reasonableness, we conclude that the district court properly calculated the Guidelines range, appropriately considered the applicable sentencing factors and the arguments of the parties, and provided an" }, { "docid": "22436172", "title": "", "text": "hearing that he had reentered the country in violation of the terms of his supervised release. The District Court then granted the petition and imposed a fifteen-month sentence to run consecutively to the thirty-month sentence for the instant reentry offense. See U.S.S.G. § 7B1.3(f). On appeal, Mr. Rodriguez-Quintanilla argues the District Court abused its discretion in imposing a consecutive sentence and that the consecutive sentence is unreasonable after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). II. DISCUSSION Under 18 U.S.C. § 3584(a), a district court has the discretion to impose consecutive or concurrent sentences. United States v. Russell, 905 F.2d 1450, 1457 (10th Cir.1990). The district court’s discretion is guided by the factors delineated by 18 U.S.C. § 3553(a), see id. (citing 18 U.S.C. § 3584(b)), which include the characteristics of the offense and the defendant, the need for deterrence and the protection of the public, and, in cases involving a violation of supervised release, “the applicable guidelines or policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post-Booker Guidelines, policy statements regarding supervised release are advisory in nature. United States v. Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir.2005). The applicable policy statement contained in § 7B1.3(f) recommends that: Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. Therefore, the District Court’s order requiring Mr. Rodriguez’s fifteen-month sentence to run consecutively with the thirty-month sentence is in accordance with the advisory policy statement contained in § 7B1.3(f). In such a case, the defendant bears the burden to demonstrate that the District Court should exercise its discretion to impose concurrent sentences in spite of that statement. United States v. Urcino-Sotello, 269 F.3d 1195, 1197 (10th Cir.2001). This Court, prior to Booker, has applied two different standards of review to" }, { "docid": "17293277", "title": "", "text": "“liberally construed.” Smith, 502 U.S. at 248, 112 S.Ct. 678. This court has described the appropriate inquiry to be “whether sufficient notice was given to apprise the other parties of the issues challenged.” United States v. Segal, 432 F.3d 767, 772 (7th Cir.2005). In addition, we have stated that “an error in designating the judgment will not result in a loss of appeal if the intent to appeal from the contested judgment may be inferred from the notice and if the appellee has not been misled by the defect.” United States v. Dowell, 257 F.3d 694, 698 (7th Cir.2001). Moving on to the merits, a sentencing court has discretion to make a sentence consecutive or concurrent. See 18 U.S.C. § 3584(a); United States v. Campbell, 617 F.3d 958, 961 (7th Cir.2010). This includes situations where the sentence is imposed in connection with a revocation of supervised release. See United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256 (10th Cir.2006). A sentencing court errs when it has discretion but fails to exercise that discretion. See United States v. Jackson, 546 F.3d 465, 472 (7th Cir.2008). As noted, the probation officer’s Summary Report of Violations referred to a policy statement contained in the sentencing guidelines, U.S.S.G. § 7B1.3(f), which provides as follows: Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. (Emphasis added.) Despite this facially mandatory language, our precedents are unambiguous that the policy statements on supervised release are not mandatory. See United States v. Harvey, 232 F.3d 585, 588 (7th Cir.2000). Rather, we have explained the import of the supervised release policy statements as follows: Rather than establishing guidelines governing the revocation of supervised release, the Sentencing Commission has opted to promulgate a series of policy statements, including a Revocation Table of recommended sentencing ranges tied to the severity of a defendant’s violations and criminal" }, { "docid": "22911782", "title": "", "text": "be reversible error. See United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994). Nonetheless, the district court must consider § 7B1.3(f) when it is applicable and may exercise its discretion to apply it when determining whether to impose a consecutive sentence. Id. at 1102; see United States v. Balli-Solis, No. 09-5238, 2010 WL 3724605, at *6-7 (6th Cir. Sept.15, 2010) (unpublished opinion); United States v. Olivo, 127 Fed.Appx. 880, 882-83 (6th Cir.2005) (unpublished opinion). When sentencing Johnson, the district court properly noted that it “ha[d] the discretion to make the sentence run concurrent or consecutive” and then exercised that discretion to order that the federal sentence be served consecutively to Johnson’s state sentence. Sent. Tr. at 16. The district court’s determination of the length of Johnson’s sentence and his decision to impose the sentence consecutively to the undischarged state sentence were intertwined. As required by § 3584(b), the district court indicated that it believed a consecutive sentence to be appropriate in light of several § 3553(a) factors. 18 U.S.C. § 3584(a), (b). There is no require ment that the district court state a “specific reason” for a consecutive sentence, and the relevant Guidelines and policy statements presume that multiple terms of imprisonment imposed at different times are consecutive. U.S.S.G. § 7B1.3(f); 18 U.S.C. § 3584(a); United States v. McCree, 299 Fed.Appx. 481, 483 (6th Cir.2008) (unpublished opinion). “Where, as here, the court makes generally dear the rationale under which it has imposed the consecutive sentence ..., it does not abuse its discretion.” United States v. Owens, 159 F.3d 221, 230 (6th Cir.1998) (emphasis added). We are therefore satisfied that the district court did not abuse its discretion in imposing a consecutive sentence. C. Substantive Reasonableness Given Johnson’s lenient initial sentence for his original conviction, the severity of the violations of the terms of his supervised release, and the § 3553(a) factors considered by the district court in sentencing, the length of Johnson’s sentence — thirty-six months of imprisonment, incorporating a fifteen-month upward departure — is not substantively unreasonable. See, e.g., United States v. Brown, 501 F.3d" }, { "docid": "22911780", "title": "", "text": "deciding to depart upwardly, the district court considered, among other factors, the nature and circumstances of the original offense, including the downward departure in the original sentence, and Johnson’s history and characteristics, including the violation conduct. Review of the record therefore establishes that the district court “adequately explained] the chosen sentence” and provided “an explanation for [the] deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. We hold, therefore, that the district judge complied with his duties to review the relevant § 3553(a) factors and to state “the specific reason” for departing upward. b. Consecutive Sentence Johnson also argues that his sentence is procedurally unreasonable because the district court failed to provide reasons for imposing a consecutive rather than concurrent sentence. At his sentencing hearing, Johnson requested that the district court impose the federal sentence concurrent to his twelve-year state sentence in light of the mitigating factors he presented to the court. The district court denied his request and ordered his thirty-six month sentence to be served consecutively to his state sentence, overruling Johnson’s subsequent objection. When a defendant is subject to an undischarged sentence of imprisonment, the district court generally has authority to impose a term of imprisonment on the current offense to run concurrently with or consecutively to the prior undischarged term. 18 U.S.C. § 3584(a). Exercise of that authority, however, is predicated on the district court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements issued by the Sentencing Commission. 18 U.S.C. § 3584(b). Specifically, when imposing sentence upon revocation of supervised release, the policy statement in U.S.S.G. § 7B1.3(f) provides that: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of ... supervised release. U.S.S.G. § 7B1.3(f). This policy statement is not binding on the district court, and construing it to be mandatory would" }, { "docid": "23141676", "title": "", "text": "court ordered that he serve his 360-month federal sentence consecutive to his undischarged state sentence. When a defendant is serving an undischarged prior sentence, the district court may impose a consecutive or concurrent sentence. 18 U.S.C. § 3584. The court must consider the factors listed in 18 U.S.C. § 3553(a) in making this determination. See 18 U.S.C. § 3584(b). Furthermore, the court should also consider the relevant Guidelines recommendations and policy statements. 18 U.S.C. § 3553(a)(4). Application Note 3(A) to Guidelines § 5G1.3(c) provides guidance, noting that a sentencing court should consider: (i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); (ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (iii) the time served on the undischarged sentence and the time likely to be served before release; (iv) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. Further, Application Note 3(C) provides that when a defendant is on federal or on state parole or supervised release at the time of the instant offense, “the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation.” A challenge to a court’s decision to impose a consecutive or a concurrent sentence is not easily classified as “substantive” or “procedural.” This is so because an evaluation of the substantive reasonableness of a decision to impose a consecutive sentence depends heavily upon an evaluation of the procedural reasonableness. See United States v. Johnson, 553 F.3d 990, 997-98 (6th Cir.2009) (noting that to determine whether a district court abused its discretion in imposing a consecutive sentence under § 5G1.3, the court will look to “the record on appeal [for evidence] that the district court turned its attention to § 5G1.3(c) and the relevant commentary in its determination”). The district court’s decision whether to impose a concurrent or consecutive sentence" }, { "docid": "23526304", "title": "", "text": "be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a). 18 U.S.C. § 3584. Section 5G1.3 reads: (a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) ... the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. (b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment. (c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the 'prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. U.S.S.G. § 5G1.3 (Nov. 1, 2001). Subsections (a) and (b) do not apply to Arellano, but subsection (c) does, and Application Note 6 addresses Arellano’s situation: 6. Revocations. If the defendant was on federal or state probation, parole or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release revoked, the sentence for the instant offense should be imposed to run consecutively to the term imposed for the violation of probation, parole, or supervised release. See § 7B1.3.... U.S.S.G. § 5G1.3, app. n. 6 (Nov. 1, 2001). Despite the mandatory tenor of Application Note 6 (“should be imposed”), we have held that a district court retains discretion to impose a consecutive or concurrent sentence. United States v. Kikuyama, 109 F.3d 536, 537-38 (9th Cir.1997); United States v. Wills, 881 F.2d 823, 826 (9th Cir.1989); see also United States v. Lail, 963 F.2d 263 (9th Cir.1992); United States v. Pedrioli, 931 F.2d 31 (9th Cir.1991). Arellano first contends that the district court failed to recognize that it possessed the discretion to impose a concurrent" }, { "docid": "23053632", "title": "", "text": "substantively unreasonable. But these mitigating factors, when weighed in light of the totality of the circumstances, are insufficient to rebut the presumption that his within Guidelines sentence was substantively reasonable. See United States v. Saffore, 216 Fed.Appx. 531, 536 (6th Cir.2007) (finding that a defendant’s personal quality as a good father does not render a within Guidelines sentence substantively unreasonable given the defendant’s criminal history). The district court did not abuse its discretion because its choice of prison terms was both procedurally and substantively reasonable. B. Decision to Impose Consecutive Sentences In contrast, the district court provided no explanation whatsoever for its decision that Defendant’s two sentences be served consecutively. “If multiple terms of imprisonment are imposed on a defendant at the same time ... the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). The exercise of this authority “is predicated on the district court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements issued by the Sentencing Commission.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir.2011) (citing 18 U.S.C. § 3584(b)). Specifically, the policy statement in U.S.S.G. § 7B1.3(f) states: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of ... supervised release. U.S.S.G. § 7B1.3(f). Although it reads as mandatory, “[t]his policy statement is not binding on the district court, and construing it to be mandatory would be reversible error.” Johnson, 640 F.3d at 208 (citing United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994)). Without some explanation of the district court’s decision, we are unable to review its application of the § 3553(a) factors or its consideration of the advisory policy statement in U.S.S.G. § 7B1.3(f). See United States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012) (vacating and remanding a supervised release violation sentence because of inadequate explanation). Indeed," }, { "docid": "2424537", "title": "", "text": "the district court. At his hearing on revocation, Rose entered a stipulation admitting each of the violations alleged in the Petition. Upon accepting the stipulation, the district court revoked both' terms of supervised release, sentenced Rose to a term of imprisonment of twenty-four months in each case, and ordered that the terms of imprisonment be served consecutively. III. ANALYSIS Rose asserts that the district court failed to comply with 18 U.S.C. § 3584 in ordering his terms of incarceration to run consecutively. Section 3584 grants district courts discretion in choosing between consecutive and concurrent terms of imprisonment. See 18 U.S.C. § 3584(a) (“If multiple terms of imprisonment are imposed on a defendant at the same time ..., the terms may run concurrently or consecutively....”). Nevertheless, in exercising that sentencing discretion, a district court must consider the factors set forth in 18 U.S.C. § 3553(a). See id. § 3584(b). Those factors include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most efficient manner; (4) the kinds of sentences available pursuant to the Sentencing Guidelines; (5) pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid unwanted sentence disparities; and (7) the need to provide restitution. See id. § 3553(a). Rose contends the district court failed to comply with § 3584(b) because it failed to weigh on the record each of the statutorily mandated factors in determining that Rose’s sentences should run consecutively. In circumstances indistinguishable from those at issue here, the Fourth Circuit recently rejected an argument identical to the one advanced by Rose. See United States v. Johnson, 138 F.3d 115, 119-20 (4th Cir.1998). The Johnson court began by noting that although “[statutory changes and the sentencing guidelines have dramatically altered the sentencing landscape^] Congress never intended ... for sentencing to become a" }, { "docid": "23072183", "title": "", "text": "the court may impose a sentence concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment. In order to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity, the court should consider the following: (i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); (ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (iii) the time served on the undischarged sentence and the time likely to be served before release; (iv) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. U.S.S.G. § 5G1.3 application note 3(A) (2007). Application Note 3(C) further provides that when a defendant is on federal or state parole or supervised release at the time of the instant offense, “the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation.” U.S.S.G. § 5G1.3 application note 3(C). When “a district court has considered the factors listed in 18 U.S.C. § 3553(a) and the applicable guidelines and policy statements in effect at the time of sentencing, the district court’s decision whether to impose a concurrent or consecutive sentence pursuant to § 5G1.3 is discretionary.” United States v. Watford, 468 F.3d 891, 916 (6th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2876, 167 L.Ed.2d 1155 (2007). A sentencing court does not abuse its discretion when it “makes generally clear the rationale under which it has imposed the consecutive sentence and seeks to ensure an appropriate incremental penalty for the instant offense.” United States v. Owens, 159 F.3d 221, 230 (6th Cir.1998), cert. denied, 528 U.S. 817, 120 S.Ct. 56, 145 L.Ed.2d 49 (1999). However, this is “not unfettered discretion,” and “the record on appeal should show that the district court turned its attention to § 5G1.3(e) and the relevant commentary in its determination of whether to impose a" }, { "docid": "22863933", "title": "", "text": "or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release.” 18 U.S.C. § 3624(e). . The sentencing court’s discretion is necessarily proscribed in part, however, in order to implement \"the statutory mandate to the Sentencing Commission to promulgate guidelines to be used by courts in determining whether- to sentence concurrently or consecutively.” United States v. Rogers, 897 F.2d 134, 137 (4th Cir.1990). USSG § 5G1‘.3 directs that some sentences run consecutively. We have reconciled this guideline with § 3584(a) by applying a departure analysis. See Rogers, 897 F.2d at 137. For example, if the district court follows the appropriate procedures for departing and properly justifies its departure, the district court may exercise its discretion and depart to impose a concurrent sentence when a consecutive sentence is called for by the guidelines. See id. The advisory Chapter 7 policy statements of the guidelines apply to the revocation of supervised release. They also specify circumstances under which sentences imposéd' upon revocation ' should run concurrently - or consecutively. A ’ close reading of the.pertinent provisions — USSG § 7B 1.3(f), Application. Note 4, and the. \"Introductory Commentary” to Chapter 7 (1995 Guidelines Manual) — reveals no official policy favoring or disfavoring running terms of imprisonment, resulting from tprms -of -supervised release that are revoked together, consecutively to each other. This is in contrast to the clear policy that \"any sentence of imprisonment for a criminal offense that is imposed after revocation of probation or supervised release be run consecutively to any term' of imprisonment imposed upon revocation,” or that a sentence imposed upon revocation be run' consecutively to an undischarged term of imprisonment. USSG § 7B1.3, com- ' ment. (n:4) (emphasis added); see United States v. Puckett, 61 F.3d 1092, 1098 (4th Cir. 1995). . We express no opinion on the obligations imposed on the district court by § 3553(c) or on whether it complied with those obligations. Section 3553(c) requires district courts to \"state in open court the reasons for its imposition of the particular sentence.” See 18" }, { "docid": "22863925", "title": "", "text": "the initial judgements of conviction. III. Johnson argues that 18 U.S.C. § 3624(e) and Chapter 7 of the Sentencing Guidelines do not authorize consecutive sentences for “simultaneous violations of supervised release,” and that, even if they do authorize consecutive sentences, the district court abused its discretion when it failed to explain why it imposed them. In arguing that § 3624(e) precludes consecutive sentences, Johnson makes essentially the same argument rejected by the Eighth Circuit in United States v. Cotroneo, 89 F.3d 510, 512-13 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996), an argument we also reject. According to that argument, because the plain language of § 3624(e) requires terms of supervised release to run concurrently, terms of imprisonment following revocation also must run concurrently. See Cotroneo, 89 F.3d at 513. We also reject Johnson’s contention that the district court abused it discretion by not demonstrating on the record that it had considered the relevant factors under 18 U.S.C. § 3553(a) when sentencing Johnson. We address Johnson’s arguments in turn. A. We reject Johnson’s contention that § 3624(e) controls the imposition of terms of imprisonment upon revocation of supervised release. Its plain language lends no support for the notion that it governs anything other than “[sjupervision after release.” See 18 U.S.C. 3624(e). Instead, § 3584, which governs “[mjultiple sentences of imprisonment” and which is not limited by its language to terms of imprisonment imposed in the initial judgment of conviction, controls. See 18 U.S.C. § 3584. According to § 3584(a), “[i]f multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). United States v. Cotroneo is instructive. In Cotroneo, the defendant was serving concurrent terms of supervised release for credit card fraud and escape. See 89 F.3d at 513. The district court revoked the defendant’s supervised release and sentenced him to twenty-four months consecutive imprisonment on each conviction. See id. at 512. The defendant appealed and made the same argument Johnson makes here. See id. at 512-13. The Eighth Circuit" }, { "docid": "23053633", "title": "", "text": "195, 208 (6th Cir.2011) (citing 18 U.S.C. § 3584(b)). Specifically, the policy statement in U.S.S.G. § 7B1.3(f) states: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of ... supervised release. U.S.S.G. § 7B1.3(f). Although it reads as mandatory, “[t]his policy statement is not binding on the district court, and construing it to be mandatory would be reversible error.” Johnson, 640 F.3d at 208 (citing United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994)). Without some explanation of the district court’s decision, we are unable to review its application of the § 3553(a) factors or its consideration of the advisory policy statement in U.S.S.G. § 7B1.3(f). See United States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012) (vacating and remanding a supervised release violation sentence because of inadequate explanation). Indeed, we cannot discern from the record whether the district court considered these materials at all. Although the district court was not required to state a “specific reason for a consecutive sentence,” Johnson, 640 F.3d at 208-09 (internal quotation marks omitted), it was nevertheless obliged to make “generally clear the rationale under which it has imposed the consecutive sentence,” United States v. Owens, 159 F.3d 221, 230 (6th Cir.1998). The district court need not state its rationale explicitly, but may incorporate by reference a discussion of the relevant considerations in another document such as the Presentence Report. See United States v. Berry, 565 F.3d 332, 342-43 (6th Cir.2009). The district court may also make clear that its reasons for choosing a substantive sentence and for running two sentences consecutively are the same. See Johnson, 640 F.3d at 208 (finding that the district court’s rationales were “intertwined”). What the district court may not do is say nothing at all. When deciding to impose consecutive sentences, we hold that a district court must indicate on the record its" }, { "docid": "22911781", "title": "", "text": "sentence, overruling Johnson’s subsequent objection. When a defendant is subject to an undischarged sentence of imprisonment, the district court generally has authority to impose a term of imprisonment on the current offense to run concurrently with or consecutively to the prior undischarged term. 18 U.S.C. § 3584(a). Exercise of that authority, however, is predicated on the district court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements issued by the Sentencing Commission. 18 U.S.C. § 3584(b). Specifically, when imposing sentence upon revocation of supervised release, the policy statement in U.S.S.G. § 7B1.3(f) provides that: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of ... supervised release. U.S.S.G. § 7B1.3(f). This policy statement is not binding on the district court, and construing it to be mandatory would be reversible error. See United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994). Nonetheless, the district court must consider § 7B1.3(f) when it is applicable and may exercise its discretion to apply it when determining whether to impose a consecutive sentence. Id. at 1102; see United States v. Balli-Solis, No. 09-5238, 2010 WL 3724605, at *6-7 (6th Cir. Sept.15, 2010) (unpublished opinion); United States v. Olivo, 127 Fed.Appx. 880, 882-83 (6th Cir.2005) (unpublished opinion). When sentencing Johnson, the district court properly noted that it “ha[d] the discretion to make the sentence run concurrent or consecutive” and then exercised that discretion to order that the federal sentence be served consecutively to Johnson’s state sentence. Sent. Tr. at 16. The district court’s determination of the length of Johnson’s sentence and his decision to impose the sentence consecutively to the undischarged state sentence were intertwined. As required by § 3584(b), the district court indicated that it believed a consecutive sentence to be appropriate in light of several § 3553(a) factors. 18 U.S.C. § 3584(a)," }, { "docid": "22290502", "title": "", "text": "of the commission of the offense of conviction, rather than the 1998 version, in force at the time of sentencing. However, the 1993 and 1998 versions of the Guidelines are not materially different. The section at issue is § 5G1.3, which allows consecutive sentences in certain circumstances. This guideline remained unchanged between 1993 and 1998; the only change was in the Application Notes. That change, however, is immaterial to Steffen’s case. Both versions of the Application Notes refer to U.S.S.G § 7B1.3, which, like § 5G1.3, remained unchanged between 1993 and 1998. Section 7B1.3(f) specifically provides that a sentence for revocation of probation shall be served consecutively to any sentence currently being served: Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. (Emphasis added.) There was thus no error, let alone plain error, in the imposition of a consecutive rather than a concurrent sentence pursuant to the Guidelines. B The district court is required by 18 U.S.C. § 3584(b) to “consider” the factors set forth in 18 U.S.C. § 3553(a) in determining whether to impose a consecutive rather than a concurrent sentence. We have made clear that the Sentencing Guidelines do not and cannot deprive the district court of the discretion it is directed to exercise under these sections. United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991) (“[W]e have already determined that the district court retains discretion under 18 U.S.C. § 3584(a) to sentence either concurrently or consecutively despite the guidelines.”) (citing United States v. Wills, 881 F.2d 823, 826-27 (9th Cir.1989)). Therefore, the district court is required to consider the factors listed in § 3553(a) regardless of statements in U.S.S.G. §§ 5G1.3 and 7B1.3(f) that on their face appear to dictate a decision without consideration of those factors. The district court stated on the record the following reasons justifying its decision" }, { "docid": "22863928", "title": "", "text": "of imprisonment. See 18 U.S.C. § 3584(a). In exercising that discretion, § 3584(b) directs only that sentencing courts consider the factors set forth in § 3553(a). See 18 U.S.C. § 3584(b). Those factors include: the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford ádéquate deterrence, protect the public, and provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most-efficient manner; the kinds of sentences available; pertinent guidelines; pertinent policy statements; the need to avoid unwanted sentence disparities; and the need to provide restitution. See 18 U.S.C. § 3553(a). We presume in non-departures, unless some contrary indication exists, that a district court properly considered the pertinent statutory factors. Statutory changes and the sentencing guidelines have'dramatically altered the sentencing landscape. Congress never intended, however, for sentencing to become a hyper-technical exercise devoid of common sense. The district court heard each of these cases (a plea in one and a jury trial in the other); reviewed a -presentence report' in each case before initially sentencing Johnson; had the benefit of the two petitions to revoke Johnson’s supervised\" release and the supervised release revocation- reports recommending consecutive sentences; at the revocation hearing, patiently listened to testimony of Johnson’s obstinacy,- to Johnson’s counsel, and to Johnson during allocution; and, finally, imposed a sentence that is consistent with the guidelines and policy statements. We are convinced that, the district court properly considered the . nature and circumstances of Johnson’s offense, his criminal history, and all other relevant factors when it sentenced Johnson to consecutive terms of imprisonment. See United States v. Davis, 53 F.3d 638, 642 (4th Cir.1995) (sentencing court need not engage in a “ritualistic incantation in order to establish its consideration of a legal issue”). Like the Eighth Circuit, we do not believe that a district court errs when it fails “to explain a revocation sentence that is consistent with all applicable policy statements.” United States v. Caves, 73" }, { "docid": "23072182", "title": "", "text": "(Sent. Tr. at 24). Johnson spent an additional five months in state prison before being released on parole again on March 30, 2008, and is now serving his federal sentence. When a defendant is serving an undischarged prior sentence, the district court may impose a consecutive or concurrent sentence. 18 U.S.C. § 3584. In making this determination, the sentencing court must consider the factors listed in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b). Accordingly, the sentencing court must consider the recommendations of the Guidelines and any pertinent policy statement. 18 U.S.C. § 3553(a)(4) & (5). The parties agree that the applicable Guideline provision is § 5G1.3(c), which provides that “[i]n any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S. S.G. § 5G1.3(c) (policy statement). Application Note 3(A) provides further guidance on achieving a “reasonable incremental punishment”: (A) Under subsection (c), the court may impose a sentence concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment. In order to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity, the court should consider the following: (i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); (ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (iii) the time served on the undischarged sentence and the time likely to be served before release; (iv) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. U.S.S.G. § 5G1.3 application note 3(A) (2007). Application Note 3(C) further provides that when a defendant is on federal or state parole or supervised release at the time of the instant offense, “the Commission recommends that the sentence for the instant offense be" }, { "docid": "22635443", "title": "", "text": "sentence must first consider, inter alia, (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; and (4) the kinds of sentences and sentencing range established by the Guidelines, and in the case of a violation of supervised release, the applicable Guidelines or policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3553(a). We cannot say that the district court acted unreasonably when, after Sweeting violated his supervised release by committing a controlled substance offense punishable by a term of imprisonment exceeding one year, the court sentenced him to two years imprisonment. First, Sweeting admitted that he violated the conditions of his supervised release, therefore the district court acted within its discretion when it revoked his release. See 18 U.S.C. § 3583(e). Second, the district court sentenced Sweeting to 24 months imprisonment, which is below the recommended Guideline imprisonment range of 33 to 41 months and within the statutory maximum sentence for a Class B or C felony. U.S.S.G. § 7B1.4(a); 18 U.S.C. § 3583(e). Third, the district court adequately considered the § 3553(a) factors in arriving at Sweeting’s sentence, including his criminal history and his threat to the public. Fourth, the district court acted within its discretion when it imposed a consecutive sentence. See United States v. Quinones, 136 F.3d 1293, 1295 (11th Cir.1998) (Whether terms of supervised release are to be served concurrently or consecutively is “a question that [18 U.S.C.] § 3584(a) entrusts to the [district] court’s discretion.”). In sum, Sweeting’s 24 month consecutive sentence was within the applicable statutory maximum, the recommended Guideline range, and was reasonable in light of the evidence of his conduct while on supervised release. Accordingly, we affirm Sweeting’s sentence. AFFIRMED. . Various panels of this circuit have also concluded as much, albeit in unpublished opinions. See, e.g., United States v. Livingston, 140 Fed.Appx. 886 (11th Cir.2005) (per curiam); United States v. Powell, 163 Fed.Appx. 765, No. 04-15706, 2005" } ]

[ { "docid": "20368423", "title": "", "text": "the meaning of “or otherwise made very plain”. Although the precise question was not involved, the United States Supreme Court in Udall v. Tallman, 380 U.S. 1, 4-5, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), clearly recognizes that the land in the Kenai Moose Range was specifically reserved to the United States at the time of passage of the Alaska Statehood Act. The factual background in Cherokee Nation or Tribe of Indians v. State of Oklahoma, 402 F.2d 739 (10th Cir. 1968), cert. granted 394 U.S. 972, 89 S.Ct. 1455, 22 L.Ed.2d 752, relied on by appellees, in no way parallels the one before us. The issue before that court was whether the provisions of certain Indian Treaties were sufficiently clear to indicate an intent to reserve, in favor of the Indian Nation, the land under the navigable waters of the Arkansas River. The court held that there was nothing in the pertinent treaties, statutes and conveyances which indicated an intent of the United States, as trustee for the states to be formed, to convey away or reserve property held for the benefit of the new states. Here, we have arrived at the opposite conclusion in relation to the language of the Order before us. Appellees would have us utilize and here apply the provisions of the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. § 1301 et seq., made applicable to Alaska by the Statehood Act. Specifically excluded from the operation of the Act are “ * * * all lands expressly retained by or ceded to the United States when the State entered the Union * * * and any rights the United States has in lands presently and actually occupied by the United States under claim of right.” 43 U.S.C. § 1313. The provisions of § 6(e) of the Statehood Act, 72 Stat. 339, 341, specifically exclude all land and water previously withdrawn. Consequently, the Submerged Lands Act has no application. Admittedly, Alaska was admitted to the Union on an equal footing with other states. However, this does not mean that the President had no power to" } ]

[ { "docid": "12681267", "title": "", "text": "explicit the intent to defeat Idaho’s title to the submerged lands. In that statute, Congress admitted Idaho into the Union “on an equal footing with the original states,” subject to the disclaimer clause of the Idaho State Constitution, which renounced the State’s “right and title to the unappropriated public lands” and lands “owned or held by any Indians or Indian tribes.” Ex. 2294. In this respect, the Idaho Statehood Act “operated to confirm [Idaho’s] title to equal footing lands ... unless the United States clearly withheld submerged lands ... prior to statehood.” Alaska, 117 S.Ct. at 1917; see also United States v. Gardner, 107 F.3d 1314, 1319-20 (9th Cir.1997) (explaining that .disclaimer clause is a recognition of preexisting United States title), cert. denied, 522 U.S. 907, 118 S.Ct. 264, 139 L.Ed.2d 191 (1997); cf. Aam, 887 F.2d at 198 (concluding that submerged lands were not “held” by tribe within meaning of disclaimer clause because tribe had not shown Federal Government reserved submerged lands for benefit of tribe). As explained above, the Executive Order of 1873 reflected a clear intent to reserve the submerged lands for the benefit of the Tribe and prior to Idaho’s statehood Congress ratified the reservation of those lands. Thus, at the time Idaho secured statehood, the United States had clearly retained title to the submerged lands and conveyed a beneficial interest to the Tribe, thereby withholding, pursuant to the Idaho Statehood Act, the transfer of those lands to the State. See Alaska, 117 S.Ct. at 1916-17; cf. Utah Div. of State Lands, 482 U.S. at 202, 208, 107 S.Ct. 2318. 2. The Plaintiffs have overcome the strong presumption of State ownership by demonstrating that the Federal Government intended to include the submerged lands within the Coeur d’Alene Reservation and that Congress intended to defeat the State’s title to those lands. In sum, the Court concludes that the United States retained, for the benefit of the Tribe, the submerged lands within the exterior boundaries of the present-day Co-eur d’Alene Reservation. Application of the three-part Puyallup test to the trial evidence demonstrates that the Federal Government clearly intended" }, { "docid": "19333188", "title": "", "text": "and to defeat the State’s title to the submerged lands in question. Alaska excepts to the Master’s conclusion on several grounds, arguing that the Government did not show a sufficiently clear intent to reserve submerged lands or to defeat state title and that the 1923 Executive Order was promulgated without proper authority. We discuss some background principles and then consider these arguments in turn. A The Property Clause, Art. IV, § 3, cl. 2, provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” In Shively v. Bowlby, 152 U. S. 1, 48 (1894), the Court concluded that this power extended to granting submerged lands to private parties, and thereby defeating a future State’s equal footing title, “to carry out . . . public purposes appropriate to the objects for which the United States hold the Territory.” We agree with the Special Master that Congress can also reserve submerged lands under federal control for an appropriate public purpose, and thus resolve a question left open in Utah Div. of State Lands, 482 U. S., at 201, in the United States’ favor. As drawn by the Master, the boundary of the Reserve encompasses both those lands that would ordinarily pass to Alaska under the equal footing doctrine — that is, tidelands and submerged lands beneath inland navigable waters — and those lands that would pass to Alaska only by virtue of the Submerged Lands Act — that is, lands beneath the 3-mile territorial sea. As a result, the parties dispute the principles governing ownership of the submerged lands. Under our equal footing cases, “[a] court deciding a question of title to the bed of navigable water must . . . begin with a strong presumption” against defeat of a State’s title. Montana, supra, at 552; see Utah Div. of State Lands, supra, at 197-198. We will not infer an intent to defeat a future State’s title to inland submerged lands “unless the intention was definitely declared or otherwise made very plain.” United States v." }, { "docid": "19333203", "title": "", "text": "regulate navigable waters for defense purposes.” Alaska Exceptions Brief 64. Alaska thus attempts to align this case with Utah Div. of State Lands, where we found no clear intent to defeat state title to the bed of Utah Lake, in part because the United States need not have defeated state title to preserve its ability to develop a reservoir or water reclamation project at the lake. 482 U. S., at 208. Alaska’s argument fails for several reasons. First, Alaska ignores the fact the Reserve was not created to preserve the United States’ “authority to regulate navigable waters for defense purposes,” but to preserve the Government’s ability to extract petroleum resources. Ownership may not be necessary for federal regulation of navigable waters, but it is necessary to prevent the Reserve’s petroleum resources from being drained from beneath submerged lands. Second, when the United States exercises its power of “exclusive legislation” under the Enclave Clause, it necessarily acquires title to the property. See James v. Dravo Contracting Co., 302 U. S. 134, 141, 142 (1937) (“[The Enclave Clause] governs those cases where the United States acquires lands with the consent of the legislature of the State for the purposes there described” (emphasis added)); see also Collins v. Yosemite Park & Curry Co., 304 U. S. 518, 527 (1938). Third, Alaska's argument that § 11(b) of the Statehood Act says nothing about federal ownership of the Reserve ignores the fact that, on its face, § 11(b) states that the United States “owned” the Reserve. As discussed supra, at 38-41, the Reserve included submerged lands. Section 11(b) thus reflects a clear congressional statement that the United States owned and would continue to own submerged lands included within the Reserve. The conclusion that Congress was aware when it passed the Alaska Statehood Act that the Reserve encompassed submerged lands is reinforced by other legislation, enacted just before Alaska’s admission to the Union, granting certain offshore lands to the Territory of Alaska. See Pub. L. 85-303, §2(a), 71 Stat. 623. Congress expressly exempted from that grant “all oil and gas deposits located in the submerged lands" }, { "docid": "12681212", "title": "", "text": "the plaintiff also must show that Congress authorized or ratified the Executive reservation and that Congress intended to defeat the future State’s title to the submerged lands. See Alaska, 117 S.Ct. at 1909-11; Utah Div. of State Lands v. United States, 482 U.S. 193, 202, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987). The necessity of establishing congressional awareness and approval of an Executive decision to reserve submerged lands rests on the relationship between the “equal footing” doctrine and the allocation of federal power under the Constitution. The power of the Federal Government to defeat a future State’s equal footing title resides ultimately with Congress. See, e.g., Alaska, 117 S.Ct. at 1906, 1910-11 (stating that pursuant to the Property Clause Congress can reserve submerged lands under federal control); Utah Div. of State Lands, 482 U.S. at 200-01, 107 S.Ct. 2318 (explaining that the power to defeat a future State’s title to submerged lands arises out of Congress’ power under the Property Clause). IV. Findings of Fact and Conclusion of Law During a trial lasting nine days, the parties to this action presented evidence on the pertinent legal issues in the form of expert and lay testimony, written reports, scientific studies and historical documents. Having heard and/or reviewed all of the evidence, the Court sets forth its findings of fact and conclusions of law. A. Executive Actions Reflect a Clear Intent to Include the Submerged Lands Within the 1873 Reservation. Applying the three-part test developed by the Ninth Circuit in Puyallup Indian Tribe, 717 F.2d at 1258, to the trial evidence, the Court finds that the first question under Alaska — whether the Executive intended to reserve the submerged lands — must be answered in the affirmative. 1. The reservation includes within its boundaries land under navigable waters. The parties agree that the disputed submerged lands lie within the exterior boundaries of the present-day Coeur d’Al-ene Reservation. Similarly, the State does not contest the fact that the Lake and associated waterways are navigable bodies of water. After considering the evidence presented at trial, the Court finds that the Lake and the relevant" }, { "docid": "19333208", "title": "", "text": "navigable waters). Assuming, arguendo, that Alaska’s construction of the Pickett Act is correct, it does not control the outcome of this case. We conclude that Congress ratified the terms of the 1923 Executive Order in § 11(b) of the Statehood Act. Despite Alaska’s protestations to the contrary, there would have been no barrier to Congress retaining a petroleum reserve, including submerged lands, at the point of Alaska’s statehood, provided it satisfied Utah Div. of State Lands’ requirements of demonstrating a clear intent to include submerged lands within the Reserve’s scope and a clear intent to defeat Alaska’s title. It follows that Congress could achieve the same result by explicitly recognizing, at the point of Alaska’s statehood, an Executive reservation that clearly included submerged lands. Cf. Utah Div. of State Lands, supra, at 205-207 (examining United States’ claim that references to the bed of Utah Lake made by the Geological Survey in reserving Utah Lake, taken together with 1890 Act providing that reservoir sites selected by the Geological Survey “shall remain segregated and reserved from entry or settlement,” signaled Congress’ ratification of the reservation of the lake bed; rejecting claim on the ground that Congress was not on notice that the Geological Survey had reserved the bed of the lake); Holden v. Joy, 17 Wall. 211, 247 (1872) (rejecting Property Clause challenge to President’s treaty with Cherokee Nation; although terms of treaty exceeded express delegation of authority by Congress to the President, Congress had “repeatedly recognized” the validity of the treaty by enacting appropriation statutes). As discussed supra, at 38-41, the 1923 Executive Order reflected a clear intent to include submerged lands within the Reserve. That instrument placed Congress on notice that the President had construed his reservation authority to extend to submerged lands and had exercised that authority to set aside uplands and submerged lands in the Reserve to secure a source of oil for the Navy. Congress acknowledged the United States’ ownership of and jurisdiction over the Reserve in § 11(b) of the Statehood Act. Accordingly, Congress ratified the inclusion of submerged lands within the Reserve, whether or not" }, { "docid": "12681205", "title": "", "text": "ratified the 1887 and 1889 agreements. With two exceptions, the boundaries of the Coeur d’Alene Reservation remain the same today as established by the congressional ratification of the 1887 and 1889 agreements. In 1894, the Tribe agreed to cede to the United States a one-mile wide strip of the reservation, running from the mouth of the Coeur d’Alene River to the reservation’s eastern boundary (the “Harrison cession”). And in 1908, Congress authorized the conveyance to the State of Idaho of land surrounding three small lakes, adjacent to the southern extreme of the Lake. Following its transfer by patent to the State of Idaho in 1911, this area became a public park (“Heyburn State Park”). III. Legal Framework The United States and the Tribe (collectively, “the Plaintiffs”) allege that the Executive Order of 1873 setting apart the reservation also reserved for the benefit of the Tribe the bed and banks of the Lake and other navigable waterways lying within the outer boundaries of the reservation. According to the Plaintiffs, Congress intended to retain, for the benefit of the Tribe, title to the submerged lands included within the reservation created by the 1887 and 1889 agreements. In contrast, the State maintains that under the “equal footing” doctrine title to all submerged lands within the exterior boundaries of the 1873 reservation passed to the State of Idaho on July 3, 1890, when Idaho was admitted into the Union. The United State Supreme Court recently articulated the legal principles relevant to resolving a dispute over the ownership of submerged lands. In United States v. Alaska, 521 U.S. 1, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997), the Supreme Court emphasized the critical connection between the ownership of submerged lands and a State’s sovereignty: “Ownership of submerged lands — which carries with it the power to control navigation, fishing, and other public uses of water — is an essential attribute of sovereignty.” Id. at 1892; see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 2041-42, 138 L.Ed.2d 438 (1997). For this reason, and in order to maintain an “equal footing”" }, { "docid": "12681206", "title": "", "text": "of the Tribe, title to the submerged lands included within the reservation created by the 1887 and 1889 agreements. In contrast, the State maintains that under the “equal footing” doctrine title to all submerged lands within the exterior boundaries of the 1873 reservation passed to the State of Idaho on July 3, 1890, when Idaho was admitted into the Union. The United State Supreme Court recently articulated the legal principles relevant to resolving a dispute over the ownership of submerged lands. In United States v. Alaska, 521 U.S. 1, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997), the Supreme Court emphasized the critical connection between the ownership of submerged lands and a State’s sovereignty: “Ownership of submerged lands — which carries with it the power to control navigation, fishing, and other public uses of water — is an essential attribute of sovereignty.” Id. at 1892; see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 2041-42, 138 L.Ed.2d 438 (1997). For this reason, and in order to maintain an “equal footing” with the original 13 colonies, a State is presumed upon admission to the Union to “succeed to the United States’ title to the beds of navigable waters within [its] boundaries.” Alaska, 117 S.Ct. at 1892. Accordingly, “ ‘[a] court deciding a question of title to the bed of navigable water must ... begin with a strong presumption’ against defeat of a State’s title.” Id. at 1906 (quoting Montana v. United States, 450 U.S. 544, 552, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)). Under the Constitution, however, the Federal Government can defeat a future State’s title to, land underlying navigable waters. , The Property Clause, Art. IV, § 3, cl. 2, provides Congress with the power to dispose of submerged lands in pre-statehood territories by “granting submerged lands to private parties” or by reserving “submerged lands under federal control.” Id. The congressional exercise of this power will not offend the Constitution so long as the conveyance or reservation is for “an appropriate public purpose.” Id. at 1909. In this case, there is no doubt that the" }, { "docid": "19333225", "title": "", "text": "cannot be known whether submerged lands are necessary to achieve that purpose. See Reply Brief for State of Alaska 14. If the Secretary of the Interior had granted the withdrawal application before Alaska’s statehood — thereby confirming that an appropriate public purpose supported the reservation of submerged lands — Alaska presumably would have no claim that the application had never covered submerged lands in the first place. It follows that Alaska objects not to the notion that the application covered submerged lands, but rather to the proposition that Alaska’s title to submerged lands covered by the application could be defeated even though the application was still pending when Alaska was admitted to the Union. We address below whether the United States could have defeated Alaska’s title to lands not yet part of a completed reservation. See infra, at 59-61. Finally, it is important to point out what Alaska does not argue at this stage of the proceedings. Alaska does not defend the Master’s ultimate recommendation on the alternative ground that the Bureau of Sport Fisheries and Wildlife lacked the authority to include submerged lands within an application to set aside lands for a wildlife refuge. In connection with its exception to the Master’s recommendation that the United States retained submerged lands within the Reserve, Alaska argued that Congress had not properly delegated to the Executive its authority under the Property Clause, Art. IV, §3, cl. 2, to divest a future State of its title to submerged lands. . Alaska makes no parallel argument here. Tr. of Oral Arg. 80-81. In any event, the Government does not claim here that Executive actions alone establish in this case that the United States retained submerged lands within the Range. Rather, the Government relies squarely on congressional intent underlying § 6(e) of the Alaska Statehood Act. Our prior discussion of ratification of Executive action applies equally here. See supra, at 44-46. There would have been no constitutional impediment to Congress designating a wildlife refuge encompassing submerged lands and retaining title to it upon Alaska’s admission to the Union, provided Congress’ actions were sufficiently clear" }, { "docid": "19333227", "title": "", "text": "to meet the requirements of our submerged lands cases. It follows that Congress could accomplish the same result by recognizing prior Executive actions. We discuss below whether Congress did so here. See infra, at 56-61. In sum, we conclude that the application by the Bureau of Sport Fisheries and Wildlife to withdraw lands for a wildlife refuge reflected a clear intent to reserve submerged lands as well as uplands. The Range’s boundary was drawn so that the periodically submerged tidelands were necessarily included within it; the boundary description referred on its face to submerged features such as bars and reefs. Moreover, the purpose of the federal reservation — protecting the habitats of various species found along the coast and in other navigable water bodies within the Range — supported inclusion of submerged lands within the Range. 2 We now consider whether, prior to Alaska’s admission to the Union, the United States defeated the future State’s title to the submerged lands included within the proposed Range. The Alaska Statehood Act set forth a general rule that the United States would retain title to all property it held prior to Alaska’s admission to the Union, while the State of Alaska would acquire title to all property held by the Territory of Alaska or its subdivisions. Pub. L. 85-508, § 5, 72 Stat. 340. There were several exceptions to that provision. Of primary relevance here is §6(e), which transferred to Alaska “[a]ll real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska . . . [provided] [t]hat such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife . . . .” Id., at 340-341. In our view, under § 6(e) of the Alaska Statehood Act, the United States retained the Range as lands “withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife,” rather than transferring the lands to Alaska. As discussed above, the 1957 application" }, { "docid": "12681265", "title": "", "text": "submerged lands, subsequent action by Congress that recognizes federal retention of those lands constitutes a ratification of the Executive action, and citing Holden v. Joy, 17 Wall. 211, 247, 21 L.Ed. 523 (1872) (“rejecting Property Clause challenge to President’s treaty with Cherokee Nation; although terms of treaty exceeded express delegation of authority by Congress to the President, Congress had ‘repeatedly recognized’ the validity of the treaty by enacting appropriation statutes”)); see also Shoshone Tribe of Indians v. United States, 299 U.S. 476, 494-96, 57 S.Ct. 244, 81 L.Ed. 360 (1937). By explicitly recognizing, prior to Idaho’s statehood, an Executive reservation that included submerged lands, Congress demonstrated the clear intent to defeat the State’s equal footing title. See Alaska^ 117 S.Ct. at 1910-11 (explaining that Congress has demonstrated the clear intent to defeat a state’s equal footing title if prior to statehood Congress recognizes an executive reservation of submerged lands for a purpose that requires federal ownership). Retention of the submerged lands was necessary to achieve the United States’ objective, id at 1910, and Congress clearly contemplated continued federal ownership of those lands, id. at 1917. The 1889 agreement by its terms anticipates that the Tribe will remain the beneficial owner of the southern third of the Lake. The northern boundary line of the diminished reservation was drawn so as to bisect the Lake, and the minutes of the 1889 negotiations confirm that the placement of the boundary line was for the purpose of establishing the Tribe’s rights to the Lake and rivers. This is “compelling evidence” that the United States intended for the Tribe to hold a beneficial interest in the submerged lands under the southern third of the Lake. See, e.g., Ñamen, 665 F.2d at 962 & n. 28. Congress could not have carried into effect the terms of the 1889 agreement without retaining title to the submerged ■ lands. Congress clearly demonstrated its intent to reserve the submerged lands under federal control by ratifying the Executive inclusion of the submerged land within the 1873 reservation. See Alaska, 117 S.Ct. at 1910-11,1915-17. In the Idaho Statehood Act, Congress made" }, { "docid": "19333210", "title": "", "text": "it had intended the President’s reservation authority under the Pickett Act to extend to such lands. D In sum, we conclude that the United States retained ownership of submerged lands beneath certain coastal features within the Reserve at Alaska’s statehood. Under the strict standards of Utah Div. of State Lands, the Executive Order of 1923 reflected a clear intent to include submerged lands within the Reserve. In addition to the fact that the Order refers to coastal features and necessarily covers the tidelands, excluding submerged lands beneath the coastal features would have been inconsistent with the purpose of the Reserve — to secure a supply of oil that would necessarily exist beneath both submerged lands and uplands. Section 11(b) of the Alaska Statehood Act, which noted that the United States owned the Reserve and which included a statement of exclusive legislative jurisdiction under the Enclave Clause, reflects Congress’ intent to ratify the inclusion of submerged lands within the Reserve and to defeat the State’s title to those lands. V The United States excepts to the Master’s conclusion that submerged lands within a federal reservation in northeastern Alaska, now known as the Arctic National Wildlife Refuge, passed to Alaska upon its admission to the Union in 1959. In November 1957, the Department of the Interior’s Bureau of Sport Fisheries and Wildlife submitted an application to the Secretary of the Interior for withdrawal of 8.9 million acres of land “to establish an Arctic Wildlife Range within all or such portion of the described lands as may be finally determined to be necessary for the preservation of the wildlife and wilderness resources of that region of northeastern Alaska.” Alaska Exh. 81 (Application for Withdrawal by Public Land Order, p. 1). This application was still pending in July 1958, when Congress passed the Alaska Statehood Act, and in January 1959, when Alaska was formally admitted to the Union. On December 6,1960, the Secretary of the Interior issued Public Land Order 2214, which “reserved” the area “for use of the United States Fish and Wildlife Service as the Arctic National Wildlife Range.” 25 Fed. Reg." }, { "docid": "19333204", "title": "", "text": "Clause] governs those cases where the United States acquires lands with the consent of the legislature of the State for the purposes there described” (emphasis added)); see also Collins v. Yosemite Park & Curry Co., 304 U. S. 518, 527 (1938). Third, Alaska's argument that § 11(b) of the Statehood Act says nothing about federal ownership of the Reserve ignores the fact that, on its face, § 11(b) states that the United States “owned” the Reserve. As discussed supra, at 38-41, the Reserve included submerged lands. Section 11(b) thus reflects a clear congressional statement that the United States owned and would continue to own submerged lands included within the Reserve. The conclusion that Congress was aware when it passed the Alaska Statehood Act that the Reserve encompassed submerged lands is reinforced by other legislation, enacted just before Alaska’s admission to the Union, granting certain offshore lands to the Territory of Alaska. See Pub. L. 85-303, §2(a), 71 Stat. 623. Congress expressly exempted from that grant “all oil and gas deposits located in the submerged lands along the Arctic coast of naval petroleum reserve numbered 4 [the National Petroleum Reserve].” §3(d) (emphasis added). Moreover, in contrast to Utah Div. of State Lands, defeating state title to submerged lands was necessary to achieve the United States’ objec tive — securing a supply of oil and gas that would necessarily exist beneath uplands and submerged lands. The transfer of submerged lands at statehood — and the loss of ownership rights to the oil deposits beneath those lands — would have thwarted that purpose. C Alaska argues that even if the 1923 Executive Order purported to include submerged lands within the Reserve for an appropriate public purpose and even if § 11(b) reflects a clear intent to defeat state title to all lands within the Reserve, title still passed to Alaska because the President lacked the authority to include submerged lands within the Reserve. Alaska Exceptions Brief 58-60. The argument is based in part on Utah Div. of State Lands, where we referred to the authority of Congress to dispose of property under the" }, { "docid": "19333139", "title": "", "text": "behind near-fringing islands as “inland waters.” In abandoning that policy in 1971, Alaska argues, the Federal Government impermissibly “contracted” Alaska’s recognized territory. Second, the State challenges the Master’s conclusion that Dinkum Sands is not an “island.” Under the Master’s approach, the low-water line on Dinkum Sands is not part of Alaska’s coastline, and the State cannot claim ownership of submerged lands, covering an area of 28 square miles, surrounding the feature. Alaska argues that the Master erred in construing the relevant definition of an “island” and in applying that definition to Dinkum Sands. Third, the State claims that the Master erred in determining that the United States retained ownership of certain submerged lands within the boundaries of the National Petroleum Reserve at Alaska’s statehood. Alaska argues both that the Executive lacked authority to prevent submerged lands from passing to Alaska, and that any attempt to include submerged lands within the Reserve was not sufficiently clear to defeat Alaska’s title under the equal footing doctrine or under the Submerged Lands Act. The United States excepts to the Master’s recommendation concerning the Arctic National Wildlife Refuge. The Master concluded, among other things, that an administrative application for the Refuge was insufficient to “set apart” submerged lands within the proposed boundaries. As a result, the Master concluded, submerged lands within the Refuge passed to Alaska at statehood. We consider these exceptions in turn. By applying the Submerged Lands Act to Alaska through the Alaska Statehood Act, see Pub. L. 85-508, § 6(m), 72 Stat. 343 (1958), Congress granted the State title to submerged lands beneath a 3-mile belt of the territorial sea, measured from the State’s “coast line.” 43 U. S. C. §§ 1301(a)(2), 1311(a). The Act defines the term “coast line” as “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” § 1301(c). Alaska’s first exception requires us to consider how the presence of barrier islands along its northern shore affects the delimitation of its coastline. The issue is of" }, { "docid": "19333226", "title": "", "text": "and Wildlife lacked the authority to include submerged lands within an application to set aside lands for a wildlife refuge. In connection with its exception to the Master’s recommendation that the United States retained submerged lands within the Reserve, Alaska argued that Congress had not properly delegated to the Executive its authority under the Property Clause, Art. IV, §3, cl. 2, to divest a future State of its title to submerged lands. . Alaska makes no parallel argument here. Tr. of Oral Arg. 80-81. In any event, the Government does not claim here that Executive actions alone establish in this case that the United States retained submerged lands within the Range. Rather, the Government relies squarely on congressional intent underlying § 6(e) of the Alaska Statehood Act. Our prior discussion of ratification of Executive action applies equally here. See supra, at 44-46. There would have been no constitutional impediment to Congress designating a wildlife refuge encompassing submerged lands and retaining title to it upon Alaska’s admission to the Union, provided Congress’ actions were sufficiently clear to meet the requirements of our submerged lands cases. It follows that Congress could accomplish the same result by recognizing prior Executive actions. We discuss below whether Congress did so here. See infra, at 56-61. In sum, we conclude that the application by the Bureau of Sport Fisheries and Wildlife to withdraw lands for a wildlife refuge reflected a clear intent to reserve submerged lands as well as uplands. The Range’s boundary was drawn so that the periodically submerged tidelands were necessarily included within it; the boundary description referred on its face to submerged features such as bars and reefs. Moreover, the purpose of the federal reservation — protecting the habitats of various species found along the coast and in other navigable water bodies within the Range — supported inclusion of submerged lands within the Range. 2 We now consider whether, prior to Alaska’s admission to the Union, the United States defeated the future State’s title to the submerged lands included within the proposed Range. The Alaska Statehood Act set forth a general rule that" }, { "docid": "19333193", "title": "", "text": "“definitely declared or otherwise made very plain”), and carried forward in Montana and Utah Div. of State Lands. Whether title to submerged lands rests with a State, of course, is ultimately a matter of federal intent. In construing a single federal instrument creating a reserve, we see no reason to apply the phrase “expressly retained” differently depending upon whether the lands in question would pass to a State by virtue of a statutory grant or by virtue of the equal footing doctrine, as confirmed by statute. Applying Montana and Utah Div. of State Lands, then, we must ask whether the United States intended to include submerged lands within the Reserve and to defeat Alaska’s title to those lands. B 1 President Harding created the National Petroleum Reserve by Executive Order in 1923. The order described a boundary following the Arctic “coast line,” measured along “the ocean side of the sandspits and islands forming the barrier reefs and extending across small lagoons from point to point, where such barrier reefs are not over three miles off shore.” Exec. Order No. 3797-A, in Presidential Executive Orders (1980) (microform, reel 6). Because the boundary follows the ocean side of the islands, the Reserve necessarily includes tidelands landward of the islands. The Reserve also contains coastal features, including “small lagoons” (to which the Order explicitly refers) and the mouths of rivers and bays (which the Master concluded were within the Reserve’s boundary). Report 381. Alaska argues that the fact that the United States included certain water areas within the exterior boundaries of the Reserve does not necessarily mean that the United States clearly intended to re serve the submerged lands beneath those waters. Alaska Exceptions Brief 62. In support of this proposition, Alaska points primarily to our decisions in Montana, supra, at 554, and Utah Div. of State Lands, 482 U. S., at 202. In Montana, the United States, as trustee for the Crow Tribe, sought a declaratory judgment that it owned the riverbed of the Big Horn River and had conveyed a beneficial interest in the submerged lands to the Tribe. The river" }, { "docid": "19333217", "title": "", "text": "effect of the application. Alaska also defends on alternative grounds the ultimate conclusion that submerged lands within the Range passed to Alaska, arguing that the United States did not clearly intend to include submerged lands within the Range and that the United States did not clearly intend to defeat Alaska’s title to those lands. In essence, Alaska challenges the Master’s conclusion that the 1957 application met the requirements of Montana and Utah Div. of State Lands — a conclusion appearing in a section of the Report to which it did not except. See Report 495-499. As will become clear, however, although the Master considered separately whether the application had the effect of “setting apart” lands within the Range within the meaning of § 6(e) and whether the requirements of Montana and Utah Div. of State Lands had been met, those inquiries overlap considerably. We therefore must address the application of Montana and Utah Div. of State Lands to this ease. A As with the Reserve, the boundaries of the Range, as drawn by the Master, encompass both submerged lands be neath tidelands and inland navigable waters — which would ordinarily pass to Alaska under the equal footing doctrine as confirmed by the Submerged Lands Act — and submerged lands beneath the territorial sea — which would pass to Alaska only by virtue of its Submerged Lands Act grant. As discussed supra, at 35-36, Congress has chosen in the Submerged Lands Act to exercise its paramount authority over submerged lands beneath the territorial sea by granting such lands to a coastal State, unless the Federal Government “expressly retained” the lands in question when the State entered the Union. 43 U. S. C. § 1313(a); see § 1301(a). Applying the logic of Montana and Utah Div. of State Lands, therefore, we ask whether the United States clearly included submerged lands within the Range and intended to defeat state title to such lands. If it did, the United States will have demonstrated that it “expressly retained” the coastal submerged lands at issue in this case, including tidelands and lands beneath the territorial sea." }, { "docid": "19333187", "title": "", "text": "submerged lands beneath inland navigable waters is pending in Federal District Court, Alaska v. United States, Nos. A83-343, A84-435, A86-191 (D. Alaska), and has been stayed until resolution of the present case, see Report 347, n. 4. The parties no longer dispute the location of the Reserve’s boundary. Accordingly, we consider only the Master’s recommendation concerning the ownership of submerged lands beneath certain coastal features within that boundary. The Master concluded that the United States retained ownership of the submerged lands in question at Alaska’s statehood. That conclusion rested principally on three premises: first, that the United States can prevent lands beneath navigable waters from passing to a State upon admission to the Union by reserving those lands in federal ownership (as opposed to conveying them to a third party); second, that Congress had authorized the President to reserve submerged lands with a 1910 statute known as the Pickett Act; and third, that the 1923 Executive Order creating the Reserve reflected a clear intent to reserve all submerged lands within the boundaries of the Reserve and to defeat the State’s title to the submerged lands in question. Alaska excepts to the Master’s conclusion on several grounds, arguing that the Government did not show a sufficiently clear intent to reserve submerged lands or to defeat state title and that the 1923 Executive Order was promulgated without proper authority. We discuss some background principles and then consider these arguments in turn. A The Property Clause, Art. IV, § 3, cl. 2, provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” In Shively v. Bowlby, 152 U. S. 1, 48 (1894), the Court concluded that this power extended to granting submerged lands to private parties, and thereby defeating a future State’s equal footing title, “to carry out . . . public purposes appropriate to the objects for which the United States hold the Territory.” We agree with the Special Master that Congress can also reserve submerged lands under federal control for an appropriate public purpose," }, { "docid": "19333137", "title": "", "text": "a 3-mile belt of the ter ritorial sea. § 1301(a). The Act essentially confirms States’ equal footing rights to tidelands and submerged lands beneath inland navigable waters; it also establishes States’ title to submerged lands beneath a 3-mile belt of the territorial sea, which would otherwise be held by the United States. California ex rel. State Lands Comm’n v. United States, 457 U. S. 273, 283 (1982). The Alaska Statehood Act expressly provides that the Submerged Lands Act applies to Alaska. Pub. L. 85-508, §6(m), 72 Stat. 343 (1958). As a general matter, then, Alaska is entitled under both the equal footing doctrine and the Submerged Lands Act to submerged lands beneath tidal and inland navigable waters, and under the Submerged Lands Act alone to submerged lands extending three miles seaward of its coastline. In hearings before the Special Master, the parties identified 15 specific issues for resolution, which we treat in three groups. First, the parties disputed the legal principles governing Alaska’s ownership of submerged lands near certain barrier islands along the Arctic Coast. Second, the parties contested the proper legal characterization of particular coastal features, including a gravel and ice formation in the Flaxman Island chain known as Dinkum Sands. Third, the parties disputed whether, when Alaska became a State, the United States retained ownership of certain submerged lands located within two federal reservations, the National Petroleum Reserve-Alaska in the northwest and the Arctic National Wildlife Refuge in the northeast. For each reservation, the Master considered both whether the seaward boundary encompassed certain disputed waters and whether particular executive and congressional actions prevented the lands beneath tidally influenced waters from passing to Alaska at statehood. Alaska excepts to three of the Master’s recommendations. First, it claims that the Master erred in concluding that waters between the Alaskan mainland and certain barrier islands were not “inland waters,” the limits of which would form a portion of the State’s coastline for purposes of measuring the State’s 3-mile Submerged Lands Act grant. Alaska argues that, at the time of its statehood, the United States had a clear policy of enclosing waters" }, { "docid": "19333194", "title": "", "text": "shore.” Exec. Order No. 3797-A, in Presidential Executive Orders (1980) (microform, reel 6). Because the boundary follows the ocean side of the islands, the Reserve necessarily includes tidelands landward of the islands. The Reserve also contains coastal features, including “small lagoons” (to which the Order explicitly refers) and the mouths of rivers and bays (which the Master concluded were within the Reserve’s boundary). Report 381. Alaska argues that the fact that the United States included certain water areas within the exterior boundaries of the Reserve does not necessarily mean that the United States clearly intended to re serve the submerged lands beneath those waters. Alaska Exceptions Brief 62. In support of this proposition, Alaska points primarily to our decisions in Montana, supra, at 554, and Utah Div. of State Lands, 482 U. S., at 202. In Montana, the United States, as trustee for the Crow Tribe, sought a declaratory judgment that it owned the riverbed of the Big Horn River and had conveyed a beneficial interest in the submerged lands to the Tribe. The river was located inside the boundaries of the Crow Reservation established by treaty in 1868, but the treaty did not expressly refer to the riverbed. 450 U. S., at 548, 554. Applying the “strong presumption against conveyance by the United States” to defeat a State’s title, id., at 552, we concluded that the “mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance,” id., at 554. Even though creation of an Indian reservation could be an “appropriate public purpose” justifying a conveyance of submerged lands, a conveyance of submerged lands beneath the river would not have been necessary for the Government’s purpose, because fishing was not important to the Crow Tribe’s way of life. Id., at 556. In Utah Div. of State Lands, the Court found that the United States had not prevented the bed of Utah Lake from passing to" }, { "docid": "19333207", "title": "", "text": "submerged lands, and Alaska therefore challenges the Master’s conclusion that the Pickett Act gave the President the express authority to dispose of them. Its argument rests mainly on the proposition that the Pickett Act’s reference to “withdrawal]” of “public lands” cannot include submerged lands, because such lands are not subject to sale, settlement, or entry under the general land laws and therefore need not be “withdrawn.” Cf. Utah Div. of State Lands, 482 U. S., at 208 (1888 Act stated that lands designated for reservoir sites were “‘reserved from sale as the property of the United States, and shall not be subject ... to entry, settlement or occupation’ rejecting claim that Act authorized inclusion of submerged lands in part because such lands were already exempt from sale, entry, or occupation); Mann v. Tacoma Land Co., 153 U. S. 273, 284 (1894) (“[T]he general legislation of Congress in respect to public lands does not extend to tide lands”); Shively, 152 U. S., at 48 (“Congress has never undertaken by general laws to dispose of” land under navigable waters). Assuming, arguendo, that Alaska’s construction of the Pickett Act is correct, it does not control the outcome of this case. We conclude that Congress ratified the terms of the 1923 Executive Order in § 11(b) of the Statehood Act. Despite Alaska’s protestations to the contrary, there would have been no barrier to Congress retaining a petroleum reserve, including submerged lands, at the point of Alaska’s statehood, provided it satisfied Utah Div. of State Lands’ requirements of demonstrating a clear intent to include submerged lands within the Reserve’s scope and a clear intent to defeat Alaska’s title. It follows that Congress could achieve the same result by explicitly recognizing, at the point of Alaska’s statehood, an Executive reservation that clearly included submerged lands. Cf. Utah Div. of State Lands, supra, at 205-207 (examining United States’ claim that references to the bed of Utah Lake made by the Geological Survey in reserving Utah Lake, taken together with 1890 Act providing that reservoir sites selected by the Geological Survey “shall remain segregated and reserved from entry" } ]

[ { "docid": "23363039", "title": "", "text": "663. When the state court did not determine the issue on its merits, and the district court decided the issue in the first instance, we review de novo the district court’s conclusions of law. We review its findings of facts for clear error. Cummings v. Sirmons, 506 F.3d 1211, 1221-22 (10th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 2943, 171 L.Ed.2d 872 (2008); see also Cargle v. Mullin, 317 F.3d 1196, 1212 (10th Cir.2003) (noting that in such circumstances, we are “not constrained by the deference principles in § 2254(d)”). We undertake this review cognizant that “our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” Mitchell v. Gibson, 262 F.3d 1036, 1063 (10th Cir. 2001) (alterations and internal quotation marks omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 422, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). B. Ineffective Assistance of Counsel Mr. Fairchild argues that he was denied effective assistance of counsel in violation of the Sixth Amendment by trial counsel’s “failure to investigate and develop for the jury the defense that Mr. Fairchild was impaired not only by alcohol but by organic brain damage.” Aplt. Opening Br. at 12. He argues that trial counsel prematurely chose and presented the simplistic case that Mr. Fairchild was a “mean drunk” when he should have developed the significance of “organic frontal lobe brain injury.” Id. at 16, 20. Mr. Fairchild contends that, in light of the facts at his disposal, counsel instead should have requested testing by a neuropsychologist and then made his brain injuries the “centerpiece of the mitigation case.” Id. at 20. He argues that, at the very least, he is entitled to an evidentiary hearing to more fully develop his claim. Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), whereby the defendant must show that: (1) “counsel’s representation fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result" } ]

[ { "docid": "19794185", "title": "", "text": "Probable Cause and Smith appealed the decision. We have jurisdiction to review these claims under 28 U.S.C. § 2253. We first consider Smith’s ineffective assistance of counsel claim and then proceed to his challenges to the 1995 death sentence. II Smith argues that his original defense lawyer provided ineffective assistance of counsel because he failed to properly investigate possible defenses to the death sentence and failed to present those possi ble defenses to Smith. We agree that Smith’s lawyer’s performance fell below an objective standard of reasonableness. However, because Smith suffered no prejudice from his lawyer’s performance, his ineffective assistance claim fails. The parties agree that this claim is not subject to the provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Therefore “we do not review the state court’s legal conclusions to determine whether they are objectively unreasonable; rather, we simply resolve the legal issue on the merits, under the ordinary rules.” Duncan v. Ornoski, 528 F.3d 1222, 1233 (9th Cir.2008) (internal quotation marks omitted). Ineffective assistance of counsel claims are mixed questions of law and fact and we review them de novo. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir.2005) (en banc). We review the district court’s findings of fact for clear error. Id. To prevail on his ineffective assistance claim, Smith must show that: (1) his trial counsel’s performance “fell below an objective standard of reasonableness”; and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In the context of a plea, a petitioner satisfies the prejudice prong of the Strickland test where “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d" }, { "docid": "23666062", "title": "", "text": "we review its legal conclusions de novo and its factual findings for clear error. Miller v. Webb, 385 F.3d 666, 671 (6th Cir.2004). No state court has adjudicated the merits of Parrish’s ineffective assistance claim. Therefore, the deferential standard of review set forth in section 2254(d) of the Antiterrorism and Effective Death Penalty Act does not apply, as there is no state court conclusion by which our review could be circumscribed. Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). In analyzing Parrish’s ineffective assistance claim, we consider “the totality of the evidence — ‘both that adduced at trial, and the evidence adduced in the habeas proceeding,’ ” Wiggins, 539 U.S. at 536, 123 S.Ct. 2527 (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (emphasis omitted); Clinkscale, 375 F.3d at 436. Because there is no issue as to exhaustion or procedural default, we turn directly to the merits of Parrish’s ineffective assistance claim. The familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs our analysis. The first prong requires Parrish to prove that his trial counsel’s representation was deficient in that it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged conduct might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052. The second prong requires Parrish to demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of [his trial] would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact entitled to de novo review.” Combs v. Coyle, 205 F.3d 269, 278" }, { "docid": "23569694", "title": "", "text": "denied him the effective assistance of counsel guaranteed by the Sixth Amendment. To succeed on such a claim, Mr. Matthews must show that his counsel’s performance was deficient and that his defense was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Performance is deficient if it falls “below an objective standard of reasonableness” measured “under prevailing professional norms” and considered in light of the cir cumstances. Id. at 688, 104 S.Ct. 2052. At the same time, Mr. Matthews must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. To establish prejudice, Mr. Matthews must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In a death penalty case, the relevant prejudice inquiry is whether there is a reasonable probability that one juror would have chosen a sentence other than death. See Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). On direct appeal, the OCCA applied Strickland to Mr. Matthews’s claims of ineffective assistance and rejected them. Matthews, 45 P.3d at 918-19. Ordinarily this would compel us to review Mr. Matthews’s argument in light of AEDPA’s deferential standards. In this case, however, Mr. Matthews sought an evidentiary hearing in state court under the terms of Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002), to help prove his claims. Matthews, 45 P.3d at 919 n. 16. This court, in an en banc proceeding, recently heard argument on whether and in what circumstances AEDPA deference or de novo review should apply when the OCCA has denied the defendant an evidentiary hearing under this rule. See Wilson v. Sirmons, 549 F.3d 1267 (10th Cir.2008) (order setting en banc hearing). Given the uncertainty surrounding the standard of review in these circumstances, and because it" }, { "docid": "20585335", "title": "", "text": "Strickland. Cargle v. Mullin, 317 F.3d 1196, 1202-04 (10th Cir.2003). But our review of the OCCA’s decision convinces us it did not apply Walker in assessing Mr. Ryder’s claim that appellate counsel was ineffective during the retrospective competency trial. Instead, it applied Walker to claims that are not before us regarding appellate counsel’s investigation prior to briefing. With respect to the claim at issue, the OCCA cited and properly applied Strickland. Ryder, No. PCD-2002-257, slip op. at 11-15. The OCCA’s mistaken reliance on Walker in one part of its opinion does not invalidate the whole. Thus, because Mr. Ryder has not shown that “some other explanation” for the OCCA’s decision exists, we proceed by assessing Mr. Ryder’s challenges to counsel’s performance at the retrospective competency trial to determine if indeed there was no reasonable basis for the OCCA’s decision to reject this claim. Mr. Ryder argues counsel provided ineffective assistance at the retrospective 'competency trial by (a) failing to adequately investigate his history of mental illness, (b) declining to present evidence showing his disengaged demeanor throughout his criminal trial, and (c) informing the jury at the retrospective competency trial that he had been convicted of murder and sentenced to death. To succeed on this ineffective-assistance-of-counsel claim, Mr. Ryder must prove deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When determining whether counsel’s performance was deficient, we begin with a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690,104 S.Ct. 2052. To overcome this presumption, Mr. Ryder must show that counsel failed to act “reasonably] considering all the circumstances” and “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. 687-88, 104 S.Ct. 2052. To prove prejudice, Mr. Ryder must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in" }, { "docid": "23652198", "title": "", "text": "2254(d)(1). The Supreme Court has set forth a two-part test for evaluating the claim of a habeas petitioner who is challenging his guilty plea on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. First, we must ask whether “counsel’s representation fell below an objective standard of reasonableness.” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate that his attorney’s performance fell below this standard, Mr. Miller must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Even if Mr. Miller is able to satisfy the first prong of this test, he will not be entitled to relief unless he is also able to demonstrate that his counsel’s performance prejudiced him, i.e., “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. The Supreme Court has explained that “[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial.” Id. The Court has also emphasized that “these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the ‘idiosyncracies of the particular decisionmaker.’ ” Id. at 59-60, 106 S.Ct. 366 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). Mr. Miller’s ineffective assistance claim presents a mixed question of law and fact. Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir.1998). Because our analysis of this claim primarily involves consideration of legal principles, we review this claim de novo. See id. Further, we note that because the state court did not hold any eviden-tiary hearing, we are in the same position to evaluate the factual record as it was. Accordingly, to the extent the state court’s dismissal of Mr. Miller’s petition was" }, { "docid": "22454457", "title": "", "text": "Stat. Ann. tit. 22, §§ 1086, 1089, prevent state court review of this ineffective assistance of appellate counsel claim. The parties have not briefed the matter of whether the Okla-' homa rules that prevented the OCCA from considering Mr. Smallwood’s handwritten statement are adequate for the purposes of procedural default. Given this fact, we will, like the district court, assume the rules are inadequate to bar federal habeas review of this claim. Consequently, we will address the merits of this particular ineffective assistance of appellate counsel claim. Petitioner’s ineffective assistance of appellate counsel claim is governed by the familiar standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the two-part Strickland test, to establish a successful ineffective assistance of counsel claim, petitioner must show: “(1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was preju dicial to his defense.” Hickman, 160 F.3d at 1273 (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2062). The first prong requires petitioner to overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.), cert. denied, — U.S. -, 119 S.Ct. 345, 142 L.Ed.2d 284 (1998). Moreover, “in considering counsel’s performance, we focus on ‘not what is prudent or appropriate, but only what is constitutionally compelled.’ ” Hickman, 160 F.3d at 1273 (quoting United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). To meet the second prong, petitioner must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. At trial, Mr. Barry Albert represented petitioner. During his direct appeal, different counsel, Mr. James Dennis, represented Mr. Smallwood. Both attorneys, however, worked for the Oklahoma City Public Defender’s Office. According to petitioner, Mr. Dennis’ performance was constitutionally deficient because he lacked the independence to objectively" }, { "docid": "22242349", "title": "", "text": "recommendations are not supported by the facts in this case or the law. She urges that the petition be granted and that this Court order a new trial. DISCUSSION I. Standards for Reviewing a Magistrate Judge’s Report and Recommendation When timely objection has been made to a portion or portions of a magistrate judge’s report, the district judge must “make a de novo determination ... of any portion of the magistrate’s disposition to which specific written objection has been made.” Rule 72(b), Fed.R.Civ.P. See also, 28 U.S.C. § 636(b)(1). In addition, 28 U.S.C. § 636(b)(1) affords the district court broad latitude in considering a magistrate judge’s recommendation, even if no party objects to it. Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). The judge may then accept, reject, or modify, in whole or in part, the magistrate judge’s proposed findings and recommendations. However, the district court’s obligation to make a de novo determination of properly contested portions of a magistrate judge’s report does not require the judge to conduct a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 66 L.Ed.2d 424 (1980). It is sufficient that the district court “arrive at its own, independent conclusion about those portions of the [magistrate judge’s] report to which objection is made.” Hernandez v. Estelle, 711 F.2d 619, 620 (6th Cir.1983). II. Ineffective Assistance of Counsel In Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), the Supreme Court established a two pronged test for analyzing ineffective assistance of counsel claims. First, petitioner must show that her counsel’s conduct was objectively unreasonable. Second, she must demonstrate that her counsel’s deficient performance prejudiced her defense. In other words, she must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. This is no light burden. In order to prevail on her claim, DeLuca must overcome the “strong presumption that [her] counsel’s conduct falls within the wide range of reasonable" }, { "docid": "18132181", "title": "", "text": "trial. See Dusky, 362 U.S. at 402, 80 S.Ct. 788. V. INEFFECTIVE ASSISTANCE OF COUNSEL A. Strickland Standard Because an ineffective assistance of counsel claim involves mixed questions of law and fact, we review the district court’s disposition of the claim de novo and its findings of fact for clear error. Mapes v. Tate, 388 F.3d 187, 190 (6th Cir.2004). To prevail on an ineffeetive-assistance-of-counsel claim, a petitioner must satisfy both prongs of the Strickland test: performance and prejudice. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the performance prong, a petitioner must prove that his attorney’s representa tion “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. To satisfy the prejudice prong, a petitioner must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. When a petitioner challenges a death sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. B. Ineffective Assistance of Counsel During Guilt Phase Harries contends that his attorneys were ineffective during the guilt phase of his trial because they failed to argue that he was incompetent to stand trial. But we have already concluded that the district court did not clearly err when it found Harries competent during his trial. Thus, Harries’s ineffective guilt-phase assistance claim must fail because he cannot show prejudice resulting from his attorneys’ allegedly deficient performance. C. Ineffective Assistance of Counsel During Sentencing Phase Harries also maintains that he received ineffective assistance of counsel during the sentencing phase because his attorneys failed to investigate and, consequently, present mitigating evidence. The district court agreed. 1. Performance To evaluate counsel’s performance, we “judge the reasonableness of" }, { "docid": "23539243", "title": "", "text": "conceded Mr. Turrentine’s guilt; 6) Trial counsel failed to obtain from the county jail medical records pertinent to Mr. Turrentine’s competence to stand trial; 7) Trial counsel failed to investigate and present mitigating evidence on Mr. Turrentine’s history of childhood abuse. The OCCA found against Mr. Turren-tine on the first two claims, which Mr. Turrentine had raised on direct appeal, and the district court agreed with that disposition. The OCCA found that Mr. Turrentine had defaulted on his remaining ineffectiveness claims by failing to directly appeal them; the district court nevertheless reviewed those claims de novo and found them to be meritless. 1) Ineffective Assistance Standard Claims of ineffective assistance of counsel are mixed questions of law and fact. Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir.1999) (applying AEDPA). As noted above, these claims are governed by the two-part Strickland test, under which the petitioner “must establish [1] that counsel’s performance was constitutionally deficient and [2] that counsel’s performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result.” Boyd v. Ward, 179 F.3d 904, 913 (10th Cir.1999), citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To prove deficient performance, Mr. Turrentine “must overcome the presumption that counsel’s conduct was not constitutionally defective.” Wallace, 191 F.3d at 1247. “Judicial scrutiny of counsel’s performance is highly deferential.” Id. Mr. Turrentine must demonstrate that counsel’s performance was not merely wrong, but fell below “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. If Mr. Turrentine demonstrates that counsel’s performance was deficient, he still must show prejudice before a reviewing court may rule in his favor. In order to show prejudice, Mr. Turrentine must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. When a petitioner challenges conduct during the sentencing stage of the trial, he must demonstrate “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Stafford v. Saffle, 34" }, { "docid": "23603006", "title": "", "text": "for supplementation of the record as to the ineffee-tive-assistance-of-counsel claim. We express no view as to whether remanding, rather than leaving the defendant to attempt a collateral challenge pursuant to 28 U.S.C. § 2255, is appropriate in the absence of a motion by the government. Cf. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance.”). In light of the remand, we proceed to a review of whether the augmented record supports Monzoris claims that her appeal waiver was unenforceable because she received ineffective assistance of counsel or because it was unknowing. C. The Merits of Monzon’s Ineffective-Assistance-of-Counsel Claim In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish both (1) that “counsel’s representation fell below an objective standard of reasonableness .... under prevailing professional norms,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. Whether an attorney’s representation of a defendant violated the Sixth Amendment right to effective assistance of counsel is a mixed question of law and fact. See, e.g., United States v. Schwarz, 283 F.3d 76, 90-91 (2d Cir.2002). Where the district court has decided such a claim and has made findings of historical fact, those findings may not properly be overturned unless they are clearly erroneous. See, e.g., United States v. Gordon, 156 F.3d 376, 379 (2d Cir.1998) (per curiam). The district court’s conclusions of law are reviewed de novo. See, e.g., id. In reviewing factual findings, “[w]e owe particularly strong deference where the district court premises its findings on credibility determinations.” Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 64 (2d Cir.1992). “[W]hen a trial judge’s finding is based on his decision to, credit the testimony of one of two or more witnesses, each of whom has told a coherent" }, { "docid": "5823223", "title": "", "text": "ORDER JOE HEATON, District Judge. Petitioner Stefen D. Petzold, a state prisoner, filed a pro se petition pursuant to 28 U.S.C. § 2254 seeking federal habeas relief from his state court convictions. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge Robert E. Bacharach. After appointing petitioner counsel, conducting an evidentiary hearing, and accepting closing remarks for the hearing in writing, Judge Bacharach issued his Proposed Findings of Fact and Conclusions of Law [Doc. # 63] recommending that the court deny habeas relief as to petitioner’s ineffective assistance of counsel claims. Judge Bacharach’s subsequent Report and Recommendation [Doc. # 66] further recommends that the court deny habeas relief as to petitioner’s Fifth Amendment double jeopardy claims. Petitioner filed an objection to the Proposed Findings of Fact and Conclusions of Law reasserting his ineffective assistance of trial counsel claims and arguing that the Magistrate Judge erred in finding that petitioner was not prejudiced by any alleged inadequacy of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). This court reviews de novo objections to the Proposed Findings of Fact and Conclusions of Law. 28 U.S.C. § 636(b)(1). “The right to counsel plays a crucial role in the adversarial system embodied by the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the ease of the prosecution to which they are entitled.” Strickland, 466 U.S. at 685, 104 S.Ct. 2052 (quotation and citations omitted). “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. 2052. Also, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “[I]n order to satisfy the ‘prejudice’ requirement, the [petitioner] must show that there is a reasonable probability that, but" }, { "docid": "4464836", "title": "", "text": "to reach the merits, reasoning that because he could have raised the issue on direct appeal (but had not), res judicata barred consideration of the claim. The district court concluded that this procedural ruling did not bar habeas review of the underlying constitutional claim. Reasoning that ineffective-assistance claims are not barred by res judicata under Ohio law when evidence outside the direct-appeal record is presented, the district court decided—in harmony with Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir.2001) (concluding that “when the record reveals that the state court’s reliance upon its own rule of procedural default is misplaced, we are reluctant to conclude categorically that federal habeas review of the purportedly defaulted claim is precluded”)—that Hill “was not required to raise this claim on direct appeal and that this claim is properly before the Court for a merits review.” D. Ct. Op. (Jan. 17, 2001) at 17. The district court, accordingly, gave de novo review to this claim on its merits, and so do we. In giving de novo review to the merits of Hill’s constitutional claim, we apply the familiar framework for analyzing ineffective-assistance-of-counsel claims set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show ineffective assistance of counsel, “[a] petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “To, establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). And to establish prejudice, a petitioner must “ ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. at 534, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In the context of a death sentence, the question of prejudice turns" }, { "docid": "23511528", "title": "", "text": "that Mitchell provided effective assistance of counsel. Petitioner maintains he received constitutionally ineffective assistance of counsel because Mitchell: (1) did not investigate an ineompetency or insanity defense, and (2) lied about DNA evidence to Petitioner’s sisters. “A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995). “We accept the factual findings of the district court unless they are clearly erroneous.” Id. The two-part inquiry of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs our review of an ineffective assistance of counsel claim. To support his claim for ineffective assistance of counsel, Petitioner must show that: (1) his attorney’s performance was constitutionally deficient, and (2) this deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064; United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995). “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Consequently, the first prong of the Strickland test requires us to determine whether “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Our “scrutiny of counsel’s performance must be highly deferential” and avoid “the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065. We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. If we determine that counsel’s performance was constitutionally deficient, we proceed to the second prong of Strickland, the prejudice inquiry. In measuring prejudice, the relevant question is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068; see also Brewer, 51 F.3d at 1523. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. The Court discussed the broad duty" }, { "docid": "19794186", "title": "", "text": "omitted). Ineffective assistance of counsel claims are mixed questions of law and fact and we review them de novo. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir.2005) (en banc). We review the district court’s findings of fact for clear error. Id. To prevail on his ineffective assistance claim, Smith must show that: (1) his trial counsel’s performance “fell below an objective standard of reasonableness”; and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In the context of a plea, a petitioner satisfies the prejudice prong of the Strickland test where “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A We hold that Smith’s defense attorney’s performance fell below an objective standard of reasonableness because he failed to investigate the facts of the crime, failed to investigate Smith’s mental state at the time of the crime, and failed to discuss possible defenses before Smith pled guilty. Strickland held that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The Strickland standard is a deferential one. Id. at 689, 104 S.Ct. 2052 (“Judicial scrutiny of counsel’s performance must be highly deferential.”). Because “[a] standard of reasonableness applied as if one stood in counsel’s shoes spawns few hard-edged rules,” Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), reasonableness determinations are made on a case-by-case basis. Montana contends that Smith’s strong intention to plead guilty eliminated his defense counsel’s duty to fully investigate the circumstances of the crime. A decision not to investigate must be reasonable under the specific circumstances of" }, { "docid": "23209158", "title": "", "text": "a reasonable choice. The district court also denied Mallett’s motion for an order allowing an interview of Dr. Pincus, as the court did “not perceive that Dr. Pincus’s report provides any evidence of Mallett’s incompetence or inability to form intent.” C. Discussion 1. Standard of Review Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a [federal] court ... claiming the right to be released ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.2001). We review de novo a district court’s denial of a § 2255 motion, and examine a district court’s factual findings for clear error. Moss v. United States, 323 F.3d 445, 454 (6th Cir.2003). Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo on appeal. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995). 2. Ineffective Assistance of Counsel To establish ineffective assistance of counsel, a defendant must show that: (1) his trial counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Kinnard v. United States, 313 F.3d 933, 935 (6th Cir.2002). The first prong of this test requires Mallett to show that counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. This standard is highly deferential, and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Under the second prong, Mal-lett must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would" }, { "docid": "14479382", "title": "", "text": "argument, the OCCA applied the three-part test for ineffective assistance of counsel claims set forth in its prior decisions. See Order Denying Application for PosNConviction Relief and Application for Exercise of Original Jurisdiction, filed Feb. 1, 2000, at 3 (citing Walker v. State, 933 P.2d 327, 333 (Okla.Crim.App. 1997)). Under that standard, “omission of meritorious claims [from an appellate brief] will ‘rarely, if ever,’ constitute deficient performance.” Id. at 3 (quoting Bryan v. State, 948 P.2d 1230, 1233 (Okla.Crim.App.1997)). This circuit has held that the OCCA’s three-part standard does not comport with the established federal standard for evaluating Sixth Amendment ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Cargle v. Mullin, 317 F.3d 1196, 1203-04 (10th Cir.2003) (concluding that the OCCA’s decisions appeared to require a petitioner asserting ineffective assistance of appellate counsel to establish not only that counsel had omitted an issue from an appeal “but also an improper motive or cause behind counsel’s omission of the issue” and that this approach “appears to involve the very inquiry that the Supreme Court specifically repudiated”). Accordingly, we will not defer to the OCCA’s conclusion. See id. at 1205 (“Because the OCCA’s analysis of petitioner’s appellate ineffectiveness allegations deviated from the controlling federal standard, ... it is not entitled to deference.”). Instead, we examine Mr. Malicoat’s claim of ineffective assistance of appellate counsel de novo, applying the familiar standard established by Strickland. Id. B. Ineffective Assistance of Appellate Counsel In order to prevail, Mr. Malicoat must first demonstrate that his appellate counsel’s performance was deficient. Secondly, Mr. Malicoat must demonstrate that his counsel’s performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Deficient performance entails an error so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Id. Counsel’s representation must fall below “an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. As to prejudice, Mr. Malicoat must show that “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the" }, { "docid": "18863593", "title": "", "text": "clear and convincing evidence that but for a constitutional error, no reasonable juror would have” convicted him. Cornell v. Nix, 976 F.2d 376, 381 (8th Cir.1992) (en banc) (quoting Sawyer v. Whitley, — U.S. —, —, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992)). Applying this standard to the record de novo, id. at 381, we conclude that Maynard has made no such showing. Accordingly, we hold that Maynard’s third, fourth, and fifth claims of ineffective assistance of counsel, as well as the instance raised sua sponte by the magistrate judge, are barred from federal habeas review and should not have been considered. B. Ineffective Assistance of Counsel We turn to the merits of Maynard’s first, second, and sixth allegations of ineffective assistance. An ineffective assistance of counsel claim presents a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). We review the district court’s legal conclusions de novo and its factual findings for clear error. Wilson v. Armontrout, 962 F.2d 817, 819 (8th Cir.) (citing Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989)), cert. denied, — U.S. —, 113 S.Ct. 383, 121 L.Ed.2d 293 (1992). To establish a claim of ineffective assistance of counsel, a defendant must show both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel’s performance is deficient if “counsel’s representation [falls] below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. Counsel’s performance prejudices an individual’s defense if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. In his first allegation, Maynard claims that his trial counsel was ineffective in failing to make a hearsay objection to certain testimony by Charles Beta. Maynard made this same argument to the Arkansas Supreme Court in his state petition for post-conviction relief. The Arkansas" }, { "docid": "2749971", "title": "", "text": "advise Osley that section 1591(b) carried a life term of supervised release for the same reasons the court rejected Osley’s claim about the mandatory minimum. Over Osley’s objections, the district court adopted the magistrate judge’s Report and Recommendation in its entirety. Osley timely appealed the order. Although the district court denied Osley’s motion for a certificate of appealability (“COA”), we granted his COA request concerning whether counsel was ineffective for failing to argue that impermissible double counting occurred; and for not telling Osley that a violation of the statute carried both a potential life term of supervised release and a mandatory minimum fifteen-year sentence. Osley filed his initial brief pro se; thereafter, however, we appointed counsel who filed supplemental briefing. II. In a section 2255 proceeding, we review legal conclusions de novo and factual findings for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.2008) (per curiam). Ineffective assistance of counsel claims are mixed questions of law and fact that we review de novo. Id. To prevail on an ineffectiveness claim, the defendant must satisfy the familiar two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must show that counsel’s performance was deficient. To meet this prong, the defendant must demonstrate that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. There is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance, and, therefore, counsel’s performance is deficient only if it falls below the wide range of competence demanded of lawyers in criminal cases. Id. at 689, 104 S.Ct. 2052. Then, the defendant must show that he suffered prejudice as a result of that performance. Id. at 687, 104 S.Ct. 2052. This requires establishing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. A habeas petitioner claiming ineffective assistance of" }, { "docid": "13807085", "title": "", "text": "district court’s conclusion that reversal is not warranted on Mr. Lockett’s cumulative error claim. F. Ineffective Assistance of Counsel at the Guilt Phase Mr. Lockett argues that he received ineffective assistance of counsel during the guilt phase of his trial because his counsel effectively conceded his guilt. He also argues that he is entitled to an evidentiary hearing to demonstrate that his counsel did not discuss the guilt-concession strategy with him before trial. The OCCA and the federal district court concluded that Mr. Lockett’s counsel’s performance was not defective and alternatively that Mr. Lockett did not suffer prejudice from his counsel’s performance. Both courts denied the evidentiary hearing request. We affirm. 1. Legal Background The parties disagree about which of two legal standards of review applies to Mr. Lockett’s claim of ineffective assistance of counsel. One standard is the familiar Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard. Under Strickland, a defendant is entitled to relief if (1) counsel’s performance was deficient, and (2) the defendant was prejudiced by it. Id. at 687-88, 104 S.Ct. 2052. A defendant establishes the first Strickland requirement by showing counsel’s performance' “fell below an objective standard of reasonableness.” Id. To meet this requirement, the defendant must overcome a “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance ... [and] might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (quotations omitted). A defendant establishes the second requirement by showing “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The other standard at issue is from United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Under Cronic, a defendant is entitled to a presumption of prejudice if defense counsel failed “to subject the prosecution’s case to meaningful adversarial testing.” Id. at 658-89, 104 S.Ct. 2039. The Supreme Court has emphasized the narrow scope of Cronic, however. For Cronic’s presumption of prejudice to apply, “the attorney’s failure must be complete.” Bell" }, { "docid": "23209159", "title": "", "text": "445, 454 (6th Cir.2003). Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo on appeal. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995). 2. Ineffective Assistance of Counsel To establish ineffective assistance of counsel, a defendant must show that: (1) his trial counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Kinnard v. United States, 313 F.3d 933, 935 (6th Cir.2002). The first prong of this test requires Mallett to show that counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. This standard is highly deferential, and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Under the second prong, Mal-lett must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Counsel’s performance must have so “undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. The reviewing court must determine if the proceeding was “fundamentally unfair or unreliable; a court should not focus the analysis on the outcome.” Kinnard, 313 F.3d at 935. Courts are not required to conduct an analysis under both prongs of the inquiry. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052; see also Kinnard, 313 F.3d at 935. We find that Mallett’s claim fails for lack of prejudice. First, Mallett has not demonstrated a reasonable probability that a challenge to Mallett’s competency to stand trial would have changed the outcome of the proceedings. Nothing in Dr. Pincus’s" } ]

[ { "docid": "12855755", "title": "", "text": "Hammond, J. In the cases of Archer v. Insurance Cos., ante, 660, (decided at the April term, 1887,) I ruled that, under section 848 of the Revised Statutes, a witness summoned in several suits, and who attended under service upon him of subpoena in each suit, was entitled to his fees in all the eases, the parties being different; and that the fact that there ivas a common defendant, the plaintiffs not being the same, did not alter the rule. That was the sole question in those cases, so far as the fees of witnesses were involved. Here the defendant denies its liability under the judgments rendered against it in these cases to any one but. the judgment plaintiff, and challenges the right of these two witnesses to make this application, as not being parties to the suit, nor seeking any relief or payment from the party at whose instance and for whose benefit the fees claimed were earned. In this and like applications the distinction between fees and costs has been entirely overlooked, the latter being an allowance, always given by statute, to the party for expenses paid or incurred in conducting his suit, while fees are compensation to an officer or witness or others for services rendered for the party in the progress of the cause. Strictly speaking, the prevailing party to a suit recovers, as costs against his adversary, only the fees which he himself has paid, or is liable to pay, and hence the usual form of judgment was for the recovery, “and his costs in this behalf expended.” The claim for fees in a case, therefore, is only good and enforceable against the party to the suit for whom the services were rendered, entitling the claimant to compensation, and not against the losing party simply because the other party to the suit has a judgment or decree against him. Otherwise every witness, officer, printer, etc., having fees unpaid in a case, would be, equally with the winning party, judgment creditors against the losing party for the amounts severally due them. Costs were not recoverable at" } ]

[ { "docid": "2852092", "title": "", "text": "device, which is designed to identify discreet information or sources of information not to elicit opinions on complex issues where the detailed cross examination allowed by deposition is imper ative. Since the plaintiff’s depositions of the defendants’ experts were necessary for use in the case, the appropriate costs should be taxed against the defendants. However, although the plaintiff can recover fees and expenses for expert witnesses in this case, it “may recover as costs of suit for expert witnesses only the amounts specified in 28 U.S.C. § 1821.” State of Illinois v. Sangamo Construction Co., 657 F.2d 855, 865-66, and n.12 (7th Cir. 1981). See also Henkel v. Chicago, St. Paul M & O Ry., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386 (1932); Fey v. Walston & Co., 493 F.2d 1036 (7th Cir. 1974). Under section 1821, a witness can be paid $30.00 per day for each day’s attendance at deposition or trial, or time spent going to and returning from the deposition or trial. 28 U.S.C. § 1821(b). Therefore, the correct measure for taxing fees for expert witnesses is not the amount the expert charged the plaintiff, nor is time spent by an expert consulting with attorneys or preparing to testify taxable. Furthermore, under section 1821, the taxable expenses of a witness are actual travel expenses if travel is by common carrier at the most economical rate reasonably available, 28 U.S.C. § 1821(c)(1) or the mileage allowance prescribed for federal government employees if travel is by privately-owned vehicle, 28 U.S.C. § 1821(c)(2); charges for taxis and other miscellaneous expenses, 28 U.S.C. § 1821(c)(3); and a subsistence allowance when an overnight stay is required, not to exceed the maximum per diem for federal government employees. 28 U.S.C. § 1821(d). The amount taxable is the amount actually paid or the statutorily-defined amount, whichever is less. After we held at the hearing in October that we would apply the standards of State of Illinois v. Sangamo Construction in this case, the plaintiff altered its request for expert witness fees and travel expenses to comply with that decision. The plaintiff reduced" }, { "docid": "8507401", "title": "", "text": "of Title 28 U.S. C.A. This section provides for a fee of $4 per day and an allowance of 8¡í per mile for going from and returning to his place of residence, with the additional proviso : “Provided, That in lieu of the mileage allowance provided for herein, witnesses who are required to travel between the Territories, possessions, or to and from the continental United States, shall be entitled to the actual expenses of travel at the lowest first-class rate available at the time of reservation for passage, by means of transportation employed.” Professor Moore points out: “The prevailing view is that the liability of a party to his witness for their legal fees and allowances is sufficient to allow him to tax those amounts as costs, if otherwise entitled to do so, although he has not actually paid those expenses. Nolis it always necessary for witnesses to be under subpoena or that they testify for their fees and allowances to be taxed as costs.” 6 Moore, Federal Practice, p. 1364. Of course, the mileage and travel allowance for witnesses is based upon the premise that the testimony of the witness must be relevant and material to the issue in the case and appear to be reasonably necessary to its disposition. In the present situation the Court finds that the testimony of the three witnesses from England was relevant and material and was reasonably necessary to the disposition of the issue of the action. Despite the clear provisions of the statute, many of the courts have limited the statutory provision by stating that transportation expenses of witnesses may not exceed the allowance of more than 100 miles, or a further distance within the District itself, each way, from the place of trial. Vincennes Steel Corp. v. Miller, 5 Cir., 1938, 94 F.2d 347; Friedman v. Washburn Co., 7 Cir., 1946, 155 F.2d 959; Kemart Corp. v. Printing Arts Research Lab., 9 Cir., 1956, 232 F.2d 897, 902-905, 57 A.L.R.2d 1234; Ryan v. Arabian Oil Co., D.C.S.D.N.Y. 1955, 18 F.R.D. 206; Perlman v. Feldmann, D.C.D.Conn.1953, 116 F.Supp. 102, 115, reversed on" }, { "docid": "4290037", "title": "", "text": "2499. In other words, a prevailing party may recover some costs incurred by them in deposing an opposing party’s expert witness, but such recovery will be strictly limited to the statutory maximum attendance fee.... Under § 1821, a witness can be paid a maximum of $30.00 [now $40] per day for each day’s attendance at deposition or trial, or time spent going to and returning from the deposition or trial____ Thus, when a prevailing party seeks reimbursement for fees paid to expert witnesses, that party may only recover a maximum fee of $30.00 [$40] per witness per day’s attendance at either deposition or trial, [citing Crawford]. Any additional amounts charged by the expert witnesses in excess of the statutory allocation may not be charged against the losing party, but must be paid for by the prevailing party who initially deposed the expert witness. Id. at *5-6 (citations omitted). The court accordingly ordered that the bill of costs include only the statutory attendance fees and allowable travel and subsistence expenses associated with plaintiffs experts’ depositions. Id. at *6. The court finds the analysis in O’Toole thorough and persuasive. Accordingly, plaintiff is entitled to recover only $160.00 ($40 for each of the four experts deposed) plus any portions of defendants’ experts’ deposition fees that are verifiably attributable to authorized travel and subsistence expenses. Counsel are directed to consult with the clerk regarding these amounts. Travel Expenses for Dr. Prosser Defendants object to plaintiff taxing as costs the travel expenses incurred by Dr. Prosser, one of plaintiffs experts, in traveling to and from his office in Kansas City, Kansas during the trial. Dr. Prosser had commitments in Kansas City which prevented him from appearing continuously for lengthy trial testimony. Defendants claim that Dr. Prosser’s schedule should not dictate the costs assessed against them. As noted supra, under 28 U.S.C. § 1821(b), “[a] witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.” Hence, plaintiff is" }, { "docid": "17735172", "title": "", "text": "to recover costs for the legal amounts paid such witness, the same as if he bad been legally subpoenaed. Anderson v. Moe, 1 Abb. (U. S.) 299, Fed. Cas. No. 359; Cummings v. Plaster Co., 6 Blatchf. 509, Fed. Cas. No. 3,473; Dennis v. Eddy, 12 Blatchf. 195, Fed. Cas. No. 3,793; U. S. v. Sanborn, 28 Fed. 299, 304; The Vernon, 36 Fed. 113, 116; The Syracuse, Id. 830; In re Williams, 37 Fed. 325; Eastman v. Sherry, Id. 845; Burrow v. Railroad Co., 54 Fed. 278; Pinson v. Railroad Co., Id. 464; Sloss Iron & Steel Co. v. South Carolina G. R. Co., 75 Fed. 106. In Easiman v. Sherry, Jenkins, Circuit Judge, after referring to the conflict in the authorities as to whether the mileage of witnesses who attended the trial voluntarily without subpoena could be charged for, said: “It needs only to state the conclusions to which my mind is constrained upon a careful consideration of the questions. The conclusion that a witness attends 'pursuant to law’ only when present in obedience to a subpmna is, to my thinking, quite too narrow a construction of the statute. The object of the law is to reimburse the prevailing party for the necessary expenses of his evidence. The only purpose of the writ is to compel attendance. But. voluntarily aftending, the witness is clothed with all the immunities of a witness served with process. He subjects himself to the jurisdiction of the court, and, when sworn, is subject to like penalties and protection as one attending in obedience to a writ. He attends pursuant to law when he subjects himself to the law. He waives the formal service of the writ. That is a matter xiersonai to himself and to the party who calls him.” In Sloss Iron & Steel Co. v. South Carolina G. R. Co., Simonton, Circuit Judge, referring to Spaulding v. Tucker, and the other cases that hold (hat the subpoena is necessary in order to authorize the taxation of costs, said: “With deference, I cannot concur in this view. The costs of witnesses are" }, { "docid": "22246051", "title": "", "text": "had power to appoint him, and there was no statute or rule of court on the subject, the court had authority to allow the expense in the items taxable as costs. Id., pp. 314, 317. The case of People of Sioux County v. National Surety Co., 276 U. S. 238, was an action upon a. surety bond. ' A Nebraska statute provided that in specified classes of cases, including that before the court, the plaintiff on obtaining judgment should be allowed a reasonable sum as an attorney’s fee. The requirement was mandatory. This court held that in such a case the attorney’s fee was recoverable in the federal court, but was careful to point out that the amount was “ not costs in the ordinary sense ” and hence was “ not within the field of costs legislation ” covered by the federal statutes. In this view, the fact that the amount could not be taxed as costs in the federal courts did not preclude the recovery. “ Since the Tight exists,” said the Court, “ the federal courts may follow their own appropriate procedure for its enforcement by including the amount of the fee in the judgment.” Id., p. 244. The present case is simply one of the amount to be allowed as witness fees, to be included in the taxable costs, and the federal statute governs. The question certified is answered “ NoA’ Sections 600a and 600c are as follows: “600a. Per diem; mileage. That . . . witnesses (other than witnesses who are salaried employees of the Government, and detained witnesses) in the United States courts, . . . who. attend, . . . shall be entitled to a per diem for each day of actual attendance and for each day necessarily occupied in traveling to attend, court, . .• . and return home, and,.in addition, mileage as provided in sections 600b to 600d of this title. “ 600e. Amount of per diem and mileage for untnesses; subsistence. Witnesses attending in such courts, . . . shall receive for each day's’ attendance and for the' time necessarily" }, { "docid": "22704424", "title": "", "text": "1853, 10 Stat. 161. The rate for witnesses was set at $1.50 per day. 10 Stat. 167. The sweeping reforms of the 1853 Act have been carried forward to today, “without any apparent intent to change the controlling rules.” Alyeska Pipeline, supra, at 255. Title 28 U. S. C. § 1920 now embodies Congress’ considered choice as to the kinds of expenses that a federal court may tax as costs against the losing party: “A judge or clerk of any court of the United States may tax as costs the following: “(1) Fees of the clerk and marshal; “(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; “(3) Fees and disbursements for printing and witnesses; “(4) Fees for exemplification and copies of papers necessarily obtained for use in the case; “(5) Docket fees under section 1923 of this title; “(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” The witness fee specified in § 1920(3) is defined in 28 U. S. C. § 1821: “(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States . . . shall be paid the fees and allowances provided by this section. “(b) A witness shall be paid an attendance fee of $30 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.” Federal Rule of Civil Procedure 54(d) in turn provides in part: “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” The logical conclusion from the language and interrelation of these provisions is that § 1821 specifies the amount of the fee that must" }, { "docid": "6257169", "title": "", "text": "statute, if they were material witnesses for the defendant upon the trial of the issues involved in the suit, and their voluntary attendance was procured, without subpoena, in entire good faith on the part of defendant, through its counsel, of which there cannot be the slightest doubt, it would seem to be wholly immaterial to the plaintiff whether they were actually subpoenaed or not. The only office of the writ is to nrocure the attendance of the witnesses, and good faith is no less required in procuring their attendance by means of compulsory process than voluntarily. A party will no more be allowed to multiply costs unnecessarily by the procurement under process of immaterial witnesses or material ones in numbers largely in excess of the reasonable requirements of a case, than without'process. Here these witnesses, no matter where their residences, might have been served with subpoena upon their arrival at the court, and, had writs issued for that purpose, plaintiff would now be liable to pay as costs the fees accruing thereunder in addition to what she must pay as it is; for by far the better opinion and the weight of authority are that the service of subpoena upon a witness is not a prerequisite to his right to fees from the party in whose behalf he in good faith attends the court, nor to the consequent liability of the losing party for the costs of such fees when paid by his adversary. U. S. v. Sanborn, 28 Fed. Rep. 299; Cahn v. Monroe, 29 Fed. Rep. 675; Anderson v. Moe, 1 Abb. (U. S.) 299; U. S. v. Williams, 1 Cranch, C. C. 178; Cummings v. Akron, etc., Co., 6 Blatchf. 509; Dennis v. Eddy, 12 Blafchf. 195; The Syracuse, 36 Fed. Rep. 830; In re Williams, 37 Fed. Rep. 325; The Vernon, 36 Fed. Rep. 113; Eastman v. Sherry, 87 Fed. Rep. 844. And such, has always been the practice in this district, as an examination of the records of the court show. Nor does it make any difference whether the witness was in fact called to" }, { "docid": "842405", "title": "", "text": "the entire mileage of witnesses .without limitation as to distance, an unbearable burden would be imposed upon the conduct of litigation. Such a course might in some cases lead to a result whereby costs would be greater than the amount of the recovery. Economy in litigation is an essential element of justice. Taxation of unlimited mileage allowances is in derogation of this principle, and cannot be permitted. I therefore hold that the mileage taxable as costs for witnesses outside the district is limited to 100 miles from the place of trial. This conclusion is sustained by the weight both of reason and of authority. See Buffalo Ins. Co. v. Providence & Stonington Steam Ship Co., CC., 29 F. 237; The Syracuse, C.C., 36 F. 830; The Progresso, D.C., 48 F. 239; Sloss Iron & Steel Co. v. South Carolina & G. R. Co., C.C., 75 F. 106; The Vernon, D.C., 36 F. 113; Burrow v. Kansas City, Ft. S. & M. R. Co., C.C., 54 F. 278; Eastman v. Sherry, C.C., 37 F. 844; Pinson v. Atchison, T. & S. F. Railroad Co., C.C., 54 F. 464; Griggsby Const. Co. v. Louisiana & N. W. R. Co., C.C., 123 F. 751; United States v. Green, D.C., 196 F. 255; Hanchett v. Humphrey, C.C., 93 F. 895; United States v. Southern Pac. Co., C.C., 172 F. 909; Kirby v. United States, 9 Cir., 273 F. 391; Vincennes Steel Corp. v. Miller, 5 Cir., 94 F.2d 347; Friedman v. Washburn Co., 7 Cir., 155 F.2d 959. This rule works no great hardship upon a party using the testimony of witnesses from without the district. He has the choice of taking depositions at a place near the residence of such witnesses, and after-wards recovering the fees and mileage of the witnesses together with the stenographic costs, if he prevails in the action; or, if he deems the presence of the witnesses of sufficient importance, he can secure their attendance and recover fees and mileage up to 100 miles, bearing the cost himself of any mileage in excess of 100 miles each way. This" }, { "docid": "8507400", "title": "", "text": "is an accountant and had prepared figures and statistics on the distribution of Enterprise and other films in Great Britain. Both of these men had personal knowledge of the facts relating to the distribution of Enterprise Films. Their testimony bore on the essential issue of the case. It was the type of testimony that was necessary if all the facts were to be presented to the jury. Defendant sought an allowance of costs of $783 for each such witness, being the lowest first-class rate for transporting each of these witnesses from and to England. The Clerk of the Court reduced the allowance of costs in each case to $16 which he computed by granting a traveling allowance for 100 miles each way at the rate of 8(5 per mile. The statutory provision for allowance of costs provides that there may be taxed as costs “ * * * fees and disbursements for * * * witnesses.” 28 U.S.C. A. § 1920(3). The fees to which a witness is entitled are set forth in § 1821 of Title 28 U.S. C.A. This section provides for a fee of $4 per day and an allowance of 8¡í per mile for going from and returning to his place of residence, with the additional proviso : “Provided, That in lieu of the mileage allowance provided for herein, witnesses who are required to travel between the Territories, possessions, or to and from the continental United States, shall be entitled to the actual expenses of travel at the lowest first-class rate available at the time of reservation for passage, by means of transportation employed.” Professor Moore points out: “The prevailing view is that the liability of a party to his witness for their legal fees and allowances is sufficient to allow him to tax those amounts as costs, if otherwise entitled to do so, although he has not actually paid those expenses. Nolis it always necessary for witnesses to be under subpoena or that they testify for their fees and allowances to be taxed as costs.” 6 Moore, Federal Practice, p. 1364. Of course, the mileage" }, { "docid": "13139042", "title": "", "text": "at points so far removed from their respective residence as to prohibit return thereto from day to day shall be entitled to an additional allowance of $5 per day for expenses of subsistence including the time necessarily occupied in going to and returning from the place of attendance.” Section 600c of the former Judicial Code was replaced by § 1821 quoted above. Neither section contains any mileage limitation, and, except for the change in the amount of money allowances, § 1821 is substantially the same as former § 600c, which provided in part as follows: “Witnesses attending in United States courts, or before United States commissioners, shall receive for each day’s attendance and for the time necessarily occupied in going to and returning from the same, $2, and 5 cents per mile for going from his or her place of residence to the place of trial or hearing and 5 cents per mile for returning: Provided, That witnesses * * * in the United States courts * * * who attend court or attend before United States Commissioners, at points so far removed from their respective residences as to prohibit return thereto from day to day, shall be entitled, in addition to the compensation provided by existing law, * * * to a per diem of $3 for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to attend court and return home.” Although former § 600c contained no mileage limitation, the courts, in construing that section, generally held that the mileage allowable for witnesses residing outside the district was limited to 100 miles from the place of trial. Friedman v. Washburn Co., 7 Cir., 155 F.2d 959; Vincennes Steel Corporation v. Miller, 5 Cir., 94 F.2d 347; Kirby v. United States, 9 Cir., 273 F. 391; United States v. Southern Pac. Co., D.C., 230 F. 270; Marks v. Merrill Paper Mfg. Co., 7 Cir., 203 F. 16; United States v. Green, D.C., 196 F. 255; The Vernon, D.C., 36 F. 113. In these cases it was held that former § 600c" }, { "docid": "23165700", "title": "", "text": "court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than oiie cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. When a witness is detained in prison for want of security for his appearance, he' shall be entitled, in addition to his subsistence, to a compensation of one dollar a day. “ Sec. 849. No officer of the United States Courts, in any State or Territory, or in the District of Columbia, shall be entitled to witness fees for attending before any court or commissioner where -he is officiating. “Sec. 850. When any clerk or other officer of the United States is sent away from his place of business as a witness for the government, his necessary expenses, stated in items and swotn to, in going, returning, and attendance on the court, shall be audited and paid ; but no mileage or other compensa-' tion in .addition to his salary shall in any case be allowed.” “ Sec. 855. In cases where the United States are parties, the marshal sháll, on the order of the court, to be entered on its minutes, pay to the jurors and witnesses all fees to which they appear by such order to be entitled, which sum shall be allowed him at the Treasury in his accounts.” “ Sec. 983. The bill of fees of the clerk, marshal and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers ■ necessarily obtained for use on trials in cases where by law costs are recoverable in favor of .the prevailing party, shall be taxed" }, { "docid": "5434680", "title": "", "text": "a balance of $3,969.66 relating to Smith and $3,352.00 relating to King. Plaintiffs appear to renew their motion for protective order (on which the Court never ruled) in their motion for attorney’s fees, but also seek to recover the residual travel and subsistence expenses for Smith and King in their bill of costs, which lists those expenses as totaling $902.68 ($600.26 for Smith and $302.42 for King). 28 U.S.C. § 1821 limits the witness fee authorized by § 1920 to forty dollars per day, provides that a witness who travels by common carrier be paid “the actual expenses of [that] travel,” and requires that a witness whose overnight stay is required be given a “subsistence allowance” not to exceed the maximum per diem allowance prescribed by the Administrator of General Services. See § 1821(b)-(d). In Crawford Fitting Co., the Supreme Court held that the provisions of § 1821 and § 1920 “define the full extent of a federal court’s power to shift litigation costs absent express statutory authority.” WVUH, 499 U.S. at 86, 111 S.Ct. 1138. WVUH makes quite clear that ERISA’s fee-shifting provision does not constitute authority to shift fees of expert witnesses, because the statute does not make specific reference to expert fees. As alluded to above, the WVUH Court held that 42 U.S.C. § 1988, which, as it was then codified, authorized an award to a prevailing party of “a reasonable attorney’s fee as part of the costs,” did not provide authority to shift to the losing party fees for services rendered by experts. Writing for a six member majority (all the members of which remain on the present Court), Justice Scalia noted that at least thirty-four statutes in ten different ti ties of the United States Code “explicitly shift attorney’s fees and expert witness fees.” Id. at 89, 111 S.Ct. 1138 (emphasis in original). Because the statutory usage showed “beyond question” that some fee-shifting provisions refer only to attorney’s fees, while many others refer to both attorney’s fees and expert witness fees, the Court concluded that the two types of fees are “distinct items of expense.”" }, { "docid": "13139043", "title": "", "text": "United States Commissioners, at points so far removed from their respective residences as to prohibit return thereto from day to day, shall be entitled, in addition to the compensation provided by existing law, * * * to a per diem of $3 for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to attend court and return home.” Although former § 600c contained no mileage limitation, the courts, in construing that section, generally held that the mileage allowable for witnesses residing outside the district was limited to 100 miles from the place of trial. Friedman v. Washburn Co., 7 Cir., 155 F.2d 959; Vincennes Steel Corporation v. Miller, 5 Cir., 94 F.2d 347; Kirby v. United States, 9 Cir., 273 F. 391; United States v. Southern Pac. Co., D.C., 230 F. 270; Marks v. Merrill Paper Mfg. Co., 7 Cir., 203 F. 16; United States v. Green, D.C., 196 F. 255; The Vernon, D.C., 36 F. 113. In these cases it was held that former § 600c impliedly limited the allowable mileage of witnesses from within the district to 100 miles because of § 654 of the former Code, which provided in effect that in a civil case the attendance of a witness living outside the district and more than 100 miles from the place of trial could not be compelled by subpoena. This latter section, § 654, was repealed by the new Judicial Code as having been superseded by Rule 45(e) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Rule 45(e) (1) is substantially identical to former § 654, and provides in part as follows: “A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the district, or at any place without the district that is within 100 miles of the place of the hearing or trial specified in the subpoena.” The court is of the opinion that although § 1821 of'the new Judicial Code does not expressly limit mileage to 100 miles, such limitation is implicit in Rule" }, { "docid": "22246052", "title": "", "text": "“ the federal courts may follow their own appropriate procedure for its enforcement by including the amount of the fee in the judgment.” Id., p. 244. The present case is simply one of the amount to be allowed as witness fees, to be included in the taxable costs, and the federal statute governs. The question certified is answered “ NoA’ Sections 600a and 600c are as follows: “600a. Per diem; mileage. That . . . witnesses (other than witnesses who are salaried employees of the Government, and detained witnesses) in the United States courts, . . . who. attend, . . . shall be entitled to a per diem for each day of actual attendance and for each day necessarily occupied in traveling to attend, court, . .• . and return home, and,.in addition, mileage as provided in sections 600b to 600d of this title. “ 600e. Amount of per diem and mileage for untnesses; subsistence. Witnesses attending in such courts, . . . shall receive for each day's’ attendance and for the' time necessarily occupied in going to and returning from the same $2, and 5 cents per mile-for going from, his or her place of residence to the place of trial or hearing and 5 cents per mile for returning; And provided further, That witnesses (other than witnesses who are salaried employees of the Government and detained witnesses) \"in the United States courts, . . . who attend court ... at points so far removed from their respective residences as to prohibit return thereto from day to day, shall, when this fact is certified to in the order of the court ... for payment, be entitled, in addition to the compensation provided by existing law, as modified by sections 600a to 600d of this title, to a per diem of $3 for expenses of subsistence for each day of actual attendance and for each \"day necessarily occupied in traveling to attend-court and return home,”" }, { "docid": "22937604", "title": "", "text": "McCormick, 11 F. Cas. 401 (No. 6,009). The Department of Justice regulations repeat the statutory directive that a witness is to be paid $20 for “each day’s attendance.” Department of Justice, United States Marshal’s Manual 340.14 (1971). There is no explicit requirement of physical presence in the courtroom. The legislative history of the compensation provision is unenlightening. Though Congress early provided compensation for witnesses attending in the courts of the United States, no specific provision was made for incarcerated witnesses. See, e. g., Act of May 8, 1792, c. 36, § 3, 1 Stat. 277; Act of June 1, 1796, c. 48, § 2, 1 Stat. 492; Act of Feb. 28, 1799, c. 19, § 6, 1 Stat. 626. In 1853, Congress provided for payment to a witness of $1.50 a day while attending court, and specifically indicated that a detained witness was to be paid $1 a day over and above his subsistence. Act of Feb. 26, 1853, c. 80, § 3, 10 Stat. 167. In 1926, Congress eliminated the specific provision for compensation to detained witnesses and raised the per diem compensation for attendance in court. Act of Apr. 26, 1926, c. 183, §§ 1-3, 44 Stat. 323-324. In the following two decades, Congress changed the levels of compensation but did not specifically provide for compensation to detained witnesses. See Act of June 30, 1932, c. 314, § 323, 47 Stat. 413; Act of Mar. 22, 1935, c. 39, § 3, 49 Stat. 105; Act of Dec. 24, 1942, c. 825, § 1, 56 Stat. 1088. When the Judicial Code was revised in 1948, the provision for per diem compensation to detained witnesses was again absent, Act of June 25, 1948, c. 646, § 1821, 62 Stat. 950, but was added the following year, Act of May 24, 1949, c. 139, § 94, 63 Stat. 103, with the explanation by the House Committee on the Judiciary that it had been “inadvertently omitted.” H. R. Rep. No. 352, 81st Cong., 1st Sess., 16. By a separate measure, witness fees were increased. Act of May 10, 1949, c. 96, 63" }, { "docid": "4290030", "title": "", "text": "not be taxed to the defendants. Counsel shall consult with the clerk regarding the amount of the expenses incurred in videotaping Dr. McCormick’s and Nurse Ulery’s depositions, and the bill of costs shall be reduced by that amount. Deposition Fees for Defendants’ Experts Defendants object to being taxed $2,150.00 for deposition fees charged to plaintiff by four of defendant’s expert witnesses. There are two types of taxable costs related to depositions. First, as discussed supra, the costs of deposition transcripts and copies thereof “necessarily obtained for use in the case” are taxable under § 1920(2) and (4). That type of deposition cost is not at issue here. Second, witness fees are recoverable as costs under § 1920(3), including fees for attendance at a deposition. Another statute, 28 U.S.C. § 1821, specifically prescribes the amounts allowable in connection with the appearance of witnesses at depositions as well as trials. See 28 U.S.C. § 1821(a)(1). It provides in pertinent part: A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance____ A subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance.... 28 U.S.C. § 1821(b) and (d)(1). Plaintiff claims that, as prevailing party, she is entitled to recover the entire $2,150.00 charged by defendant’s experts for their deposition attendance. Plaintiff does not seek such fees for her own experts. Defendants object, claiming plaintiff cannot recover any witness deposition fees in excess of the $40 limit specified in § 1821(b). As stated supra, the awarding of costs is always contingent upon a determination that there is a statute authorizing such an award. Having reviewed § 1920 and § 1821, the court can find no authority for taxing expert witness fees beyond the $40 attendance fee and travel and subsistence expenses, unless the expert is court-appointed. See 28 U.S.C. §" }, { "docid": "18231348", "title": "", "text": "not testify at trial, and Green therefore may not claim expenses for Nelson as a necessary witness. Similarly, although Doug Rapp did not testify at trial, the documentation submitted in support of his witness fees, totalling $1,148.50, reflects expenses associated only •with his attendance at trial. Finally, Perry Moore did not give live testimony at trial, but rather testified by deposition. However, the documentation submitted in support of the bill of costs claims only expenses associated with his attendance at trial, totalling $2,008.65. As a general rule, no witness fee may be taxed for a person who travels to the courthouse but does not testify at trial. 10 Wright & Miller § 2678, at 377. Green has not submitted any evidence to rebut the presumption that naturally arises under such circumstances that Nelson, Moore, and Rapp were not necessary witnesses. See id. Con sequently, the court will disallow the witness fees claimed for Nelson, Rapp, and Moore, for a total reduction of $5,381.22. Next, KPL argues that the per diem attendance fee should be reduced by a total of $320 because several witnesses testified prior to December 1,1990, the effective date of the statutory increase in per diem attendance fees from $30 to $40. See 28 U.S.C.A. § 1821(b) (Historical and Statutory Notes, 1990 Amendment); Pub.L. 101-650, Title III, § 314(a), 104 Stat. 5115 (effective Dee. 1, 1990). The court agrees. Accordingly, the amount awarded Green will be reduced by $320 to reflect the lower statutory attendance fee in effect prior to December 1, 1990. Next, KPL argues that certain amounts allowed for travel and mileage expenses exceed the statutory limitation in 28 U.S.C. § 1821(c)(1), which provides in part that a witness travelling by common carrier shall be paid at the most economical rate reasonably available for the shortest practical route to and from the place of attendance. In addition, KPL claims that Green is not entitled to recover certain travel expenses for witnesses KPL contends did not testify at trial. The court notes that KPL, in objecting to witness fees, does not invoke the “100-mile rule,” a limitation" }, { "docid": "18231349", "title": "", "text": "by a total of $320 because several witnesses testified prior to December 1,1990, the effective date of the statutory increase in per diem attendance fees from $30 to $40. See 28 U.S.C.A. § 1821(b) (Historical and Statutory Notes, 1990 Amendment); Pub.L. 101-650, Title III, § 314(a), 104 Stat. 5115 (effective Dee. 1, 1990). The court agrees. Accordingly, the amount awarded Green will be reduced by $320 to reflect the lower statutory attendance fee in effect prior to December 1, 1990. Next, KPL argues that certain amounts allowed for travel and mileage expenses exceed the statutory limitation in 28 U.S.C. § 1821(c)(1), which provides in part that a witness travelling by common carrier shall be paid at the most economical rate reasonably available for the shortest practical route to and from the place of attendance. In addition, KPL claims that Green is not entitled to recover certain travel expenses for witnesses KPL contends did not testify at trial. The court notes that KPL, in objecting to witness fees, does not invoke the “100-mile rule,” a limitation traditionally imposed by courts on mileage claimed for witnesses residing outside the geographic range of the court’s subpoena power. See West Wind Africa Line v. Corpus Christi Marine Services Co., 834 F.2d at 1237 (explaining rationale for rule); Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 936 (10th Cir.) (affirming district court’s application of 100-mile rule for the transportation costs of witnesses), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984); Fleet Inv. Co., Inc. v. Rogers, 620 F.2d 792, 794 (10th Cir. 1980) (while district court has discretion to award costs in excess of 100 miles from place where trial is held, such request appeals to the court’s discretion; hence parties who obtain a witness from outside 100-mile limit without advance approval do so at their peril); Linneman Constr., Inc. v. Montana-Dakota Utilities Co., Inc., 504 F.2d 1365, 1371 (8th Cir.1974) (rule after Farmer is to limit travel expenses for witness outside district to 100 miles absent special circumstances). But see Shevin v. Lederman, 92 F.R.D. 752, 753 (D.Colo.1981) (modern" }, { "docid": "842406", "title": "", "text": "v. Atchison, T. & S. F. Railroad Co., C.C., 54 F. 464; Griggsby Const. Co. v. Louisiana & N. W. R. Co., C.C., 123 F. 751; United States v. Green, D.C., 196 F. 255; Hanchett v. Humphrey, C.C., 93 F. 895; United States v. Southern Pac. Co., C.C., 172 F. 909; Kirby v. United States, 9 Cir., 273 F. 391; Vincennes Steel Corp. v. Miller, 5 Cir., 94 F.2d 347; Friedman v. Washburn Co., 7 Cir., 155 F.2d 959. This rule works no great hardship upon a party using the testimony of witnesses from without the district. He has the choice of taking depositions at a place near the residence of such witnesses, and after-wards recovering the fees and mileage of the witnesses together with the stenographic costs, if he prevails in the action; or, if he deems the presence of the witnesses of sufficient importance, he can secure their attendance and recover fees and mileage up to 100 miles, bearing the cost himself of any mileage in excess of 100 miles each way. This is a fair and equitable rule. The taxation as costs of a United States Marshal’s fees and mileage for serving or attempting to serve subpoenas outside the district and more than 100 miles from the place of trial is also precluded by rule 45 (e) (1). Subpoenas served beyond the 100 mile limit have no effect; they are nothing more than a request to attend the trial and cannot successfully command the presence of the witness. Since they serve no useful purpose in the case, it would be inequitable and unjust to permit the fees and mileage incurred in the service thereof to be assessed as costs against the defeated party. This applies to the cost of service in New York on Andrew Jones, as well as the cost of attempted service in Maryland on the same witness. See United States v. Southern Pac. Co., supra. The remaining question is: Can Barnhart properly include in his bill of costs fees and mileage for Mrs. Barnhart as a witness in his suit; and can Mrs. Barnhart" }, { "docid": "6257177", "title": "", "text": "Pat. Cas. 244, decided in 1862, though in the latter case the inference would seem to be that Judge Leavitt’s ruling goes to the extent of allowing the taxation of full mileage if the witness be summoned; for he says in the opinion: “If a witness whose residence is not at the place of holding court is summoned there, he is allowed mileage for returning to his home, but not for coming to the court; and, by a liberal construction of the statute, return travel lias been allowed even beyond the limits of the district for which the court is held.” In 1869, Judge Witliey lield in Michigan that a witness going voluntarily to a court in tliat state from Ms home in Yew York was \"entitled to the per diem of $1.50 and traveling fees from his place of residence and for returning, provided he actually traveled so far to reach the court,” (Anderson v. Moe, 1 Abb. [U. S.] 299;) while Judge Brown, in the same state, as late as 1888, in the case of The Vernon, 36 Fed. Rep. 113, 115-117, in an exhaustive opinion, reviewing all the cases, ruled that the mileage fees of a nonresident witness could only he taxed as costs to the extent of 100 miles from the place of holding court. As between the witness and the party at whose instance he attends the court, there is no doubt whatever as to the amount he should receive or could recover iu a suit therefor. In case of a contract, it would, of course, he the amount agreed, upon, and, in the absence of any contract, a quantum meruit, or reasonable sum for loss of time and necessary expenses. And in Spaulding v. Tucker, 2 Sawy. 50, Judge Sawyer, in ascertaining such sum, says: “There being no special circumstances shown to call for a different measure, I know of no better mode of arriving at what is reasonable than to adopt the amount fixed by the act of congress as the compensation allowed witnesses who attend npon compulsory process.” And this amount, when" } ]

[ { "docid": "17691048", "title": "", "text": "PER CURIAM. The above three-judge District Court, having been duly assembled in compliance with the complaint filed in this cause, has this day heard and considered arguments in open court on the motion of attorneys for the defendants for a dissolution of this three-judge court and for a remand of the cause to a single district judge for trial, upon the grounds that Section 2281 of Title 28, United States Code, is not applicable and that, accordingly, a three-judge court does not have jurisdiction. The same position taken by defendants in the foregoing motion was also taken by defendants in the answer filed in the cause, and also in open court on argument of the motion. Therefore, it is obvious that no necessity for the hearing of the cause by a three-judge District Court exists, since the unenforcibilify of the Constitution and Statutes of Tennessee has been conceded by defendants. The motion to dissolve the three-judge District Court is, therefore, granted, and the case is remanded to be heard by a District Judge. This Court has also considered the second ground of the motion of defendants argued today that the case should be continued to afford the Board of Education of the City of Nashville an opportunity to formulate a plan in compliance with the principles announced by the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. In the second opinion in Brown v. Board of Education, 349 U.S. 294, 299, 300, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083, the Supreme Court said: “Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidat ing, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. * * * “ * * * Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality" } ]

[ { "docid": "23013233", "title": "", "text": "specific relief than a private party might be. State of Georgia v. Tennessee Copper Co., 1907, 206 U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038. Courts of equity frequently go much further both in giving and in withholding relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Virginian Ry. Co. v. System Federation No. 40, 1937, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789; United States v. McElveen, supra.” Judge Wright used much the same language in United States v. McElveen, E.D.La., 1960, 180 F.Supp. 10, 14, affirmed sub nom. United States v. Thomas, 1960, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535. . The legislative history certainly bears out the likelihood that affirmative mandatory orders have the effect of qualifying specified persons as voters would be both necessary and properly employed. See, e. g., testimony of Attorney General Brownell in hearings before the House Committee of the Judiciary, 84 Cong., 1st Sess. incorporated into Hearings on Civil Rights Before Subcommittee No. 5 of the House Committee on the Judiciary, 85 Cong., 1st Sess., pp. 571-572; also remarks during debates on the bill, 103 Cong.Rec. 12572, 12460. .See the following of many similar and more recent cases affirmatively requiring admission of Negro school children. See Pettit v. Board of Education of Harford County, Maryland, D.Md., 1960, 184 F.Supp. 452 (one pupil ordered admitted); Jones v. School Board of City of Alexandria, Virginia, E.D.Va., 1959, 179 F.Supp. 280, affirmed, 4 Cir., 1960, 278 F.2d 72 (eight pupils ordered admitted); Thompson v. County School Board of Arlington County, E.D.Va., 1958, 166 F.Supp. 529, affirmed sub nom., Hamm v. County School Board of Arlington County, Virginia, 4 Cir., 1959, 263 F.2d 226 (four pupils ordered admitted); Groves v. Board of Education of St. Mary’s County, Maryland, D.Md., 1958, 164 F.Supp. 621, affirmed, 4 Cir., 1958, 261 F.2d 527 (one pupil ordered admitted); Thompson v. County School Board of Arlington County, Virginia, E.D.Va., 1957, 159 F.Supp. 567, affirmed, 4 Cir., 1958, 252 F.2d 929, cert. denied 1958, 356 U.S. 958," }, { "docid": "17774857", "title": "", "text": "condemned in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas. 1918A, 1201; with respect to Pullman accommodations on railroads in McCabe v. Atchison, Topeka & S. F. R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; with respect to educational facilities, in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; with respect to the division of school funds in Davenport v. Cloverport, D.C., 72 F. 689; and with respect to the pursuit of a trade or vocation, in Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230.” Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, 996, certiorari denied 311 U.S. 693, 61 S.Ct. 75, 85 L.Ed. 448. See also the case of Smith v. Allwright et al., 321 U.S. 649, 64 S.Ct. 757. Two other grounds of the motion assert that no actual controversy exists between the parties which would sustain a declaratory judgment and that the facts alleged are insufficient to authorize the injunction sought. With respect to the latter ground, it may be noted that, under the Declaratory Judgments Act, 28 U.S. C.A. § 400, the Court has jurisdiction “to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed,” so that the question as to whether or not an injunction may or may not subsequently issue is not necessarily to be determined upon consideration of the motion to dismiss. Declaratory judgments in similiar cases have been granted by several courts. Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, certiorari denied 311 U.S. 693, 61 S. Ct. 75, 85 L.Ed. 448; Thomas v. Hibbitts, D.C., 46 F.Supp. 368; McDaniel v. Board of Public Instruction, D.C., 39 F.Supp. 638; and Mills v. Board of Education of Anne Arundel County, 30 F.Supp. 245. As to the first ground, it seems clear from the averments of the petition that not only does an actual controversy between" }, { "docid": "2998375", "title": "", "text": "7784, 7785, 7786, 7786-01, 7787, 7787.5, Miss.Code Ann. (1942). . “Here, according to petitioner’s own claim, all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now question for the first time. It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The equal protection clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” Nashville, C. & St. L. Ry. Co. v. Browning, 1940, 310 U.S. 362, 369, 60 S.Ct. 968, 972. . Phillips v. United States, 1941, 312 U.S. 246, 253, 61 S.Ct. 480, 484, 85 L.Ed. 800. . See also Evers v. Dwyer, 1958, 358 U.S. 202, 79 S.Ct. 178, 179, 3 L.Ed.2d 222, where the Court ordered a three-judge court, whose jurisdiction was invoked to enjoin Tennessee transportation statutes requiring segregation, to hear that and “any other method of state-enforced segregation on Memphis transportation facilities.” The Court has continually struck down state-enforced schemes of segregation, whether they were done directly or “ingeniously or ingenuously.” Cooper v. Aaron, 1958, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5; Smith v. Texas, 1940, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84; Lane v. Wilson, 1939, 307 U.S. 268, 275, 59 S.Ct. 872, 83 L.Ed. 1281; see Bush v. Orleans Parish School Board, E.D.La., 194 E.Supp. 182, ail’d sub nom. Gremillion v. United States, 1961, 82 S.Ct. 119. It is not uncommon for the states to attempt to enforce segregation through general police power statutes. Boynton v. Virginia, 1960, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (trespass) ; Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 E.2d 531 (breach of the peace)." }, { "docid": "13600344", "title": "", "text": "is sound and convincing authority that a school board, “acting promptly, and completely uninfluenced by private and public opinion as to the desirability of desegregation in the community,” must proceed with deliberate speed, consistent with proper administration, to abolish segregation, Jackson v. Rawdon, 5 Cir., 1956, 235 F.2d 93, 96; certiorari denied 352 U.S. 925, 77 S.Ct. 221, 1 L.Ed.2d 160; School Board of the City of Charlottesville, Va. v. Allen, 4 Cir., 1956, 240 F.2d 59, certiorari denied, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664; and while “ * * * a good faith acceptance by the school board of the underlying principle of equality of education for all children with no classification by race might well warrant the allowance by the trial court of time for such reasonable steps in the process of desegregation as appears to be helpful in avoiding unseemly confusion * * * [n] evertheless whether there is such acceptance by the Board or not, the duty of the court is plain. The vindication of rights guaranteed by the Constitution can not be conditioned upon the absence of practical difficulties.” (Emphasis supplied.) Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 F.2d 156 at page 166, certiorari denied 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436. “The fact that the schools might be closed if the order were enforced is no reason for not enforcing it,” Allen v. County School Board of Prince Edward County, Va., 4 Cir., 1957, 249 F.2d 462, 465, certiorari denied 355 U.S. 953, 78 S.Ct. 539, 2 L.Ed.2d 530, because, as the Court there stated: “A person may not be denied enforcement of rights to which he is entitled under the Constitution of the United States because of action taken or threatened in defiance of such rights.” In his opinion, 163 F.Supp. 13, 20, which incorporated findings of fact and conclusions of law, Judge Lemley, who has most carefully and conscientiously considered the problem presented, recognized that the occurrences which motivated the instant proceeding were the direct result of general community opposition to integration. He stated:" }, { "docid": "15855379", "title": "", "text": "the three judge provisions of Sec. 2284, and cannot, once constitutional questions are raised, do anything but “notify the Chief Judge of this Circuit of the application for a permanent injunction in this case.” The short answer to the request for a three-judge court is that the court is under no duty to convene a three judge court when no claim for relief cognizable in a federal court is stated in the complaint. In Jacobs v. Tawes, 250 F.2d (4th Cir. 1957) 611, Parker, C. J., stated as follows: “Appellant contends, however, that the District Judge was without jurisdiction to dismiss the case, arguing that, since a court of three judges was required for the hearing of the application for injunction, a single judge had no jurisdiction to take any action in the case and, because of the provisions of 28 U.S.C. § 2284(5), might not dismiss it, even though no claim for relief cognizable in a federal court was stated in the complaint. We think that this contention is entirely without merit. The court of three judges is not a different court from the District Court, but is the District Court composed of two additional judges sitting with the single District Judge before whom the application for injunction has been made. 28 U.S.C. § 2284(1). The purpose of the requirement of three judges for the hearing of such a case is to prevent the improvident invalidation of state legislation by action of a single judge. Phillips v. United States, 312 U.S. 246, 248-251, 61 S.Ct. 480, 85 L.Ed. 800. The presence of the two additional judges is not required where no substantial question as to the validity of the state legislation is involved. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 4, 78 L.Ed. 152; Davis v. County School Board of Prince Edward County, D.C., 142 F.Supp. 616. The same is held where no basis for injunctive relief is asserted. Linehan v. Waterfront Commission of New York Harbor, D.C., 116 F.Supp. 401 (a case decided after the enactment of 28 U.S.C. § 2284). A fortiori, it is not" }, { "docid": "23589569", "title": "", "text": "required for the hearing of the application for injunction, a single judge had no jurisdiction to take any action in the case and, because of the provisions of 28 U.S.C. § 2284(5), might not dismiss it, even though no claim for relief cognizable in a federal court was stated in the complaint. We think that this contention is entirely without merit. The court of three judges is not a different court from the District Court, but is the District Court composed of two additional judges sitting with the single District Judge before whom the application for injunction has been made. 28 U.S. C. § 2284(1). The purpose of the requirement of three judges for the hearing of such a case is to prevent the improvident invalidation of state legislation by action of a single judge. Phillips v. United States, 312 U.S. 246, 248-251, 61 S.Ct. 480, 85 L.Ed. 800. The presence of the two additional judges is not required where no substantial question as to the validity of the state legislation is involved. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 4, 78 L.Ed. 152; Davis v. County School Board of Prince Edward County, D.C., 142 F.Supp. 616. The same is held where no basis for injunctive relief is asserted. Linehan v. Waterfront Commission of New York Harbor, D.C., 116 F.Supp. 401 (a case decided after the enactment of 28 U.S.C. § 2284). A fortiori, it is not required that the additional judges be summoned, when, as here, it appears from the complaint itself that the case is not one within the jurisdiction of the court. Such a case is manifestly not one “required by Act of Congress to be heard and determined by a district court of three judges” within the language of 28 U.S.C. § 2284. As said in Ex parte Poresky, supra, “* * * the provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction.” The rule laid down in Ex parte Poresky, supra, has not been changed by anything contained in 28 U.S.C. § 2284. That" }, { "docid": "23304956", "title": "", "text": "for declaratory and injunctive relief, not damages. See United States ex rel. Lee v. State of Illinois, 343 F.2d 120 (7th cir. 1965); Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th cir. 1969); Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th cir. 1961). For the purposes of this action, defendants are “persons” under 42 U.S.C. § 1983. Neither the Eleventh Amendment nor the doctrine of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), affords these defendants the shield of sovereign immunity in this action for declaratory and injunctive relief in which it is alleged that, acting under color of state law, they have deprived plaintiff of rights secured to him by the Constitution of the United States. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Whitner v. Davis, 410 F.2d 24 (9th cir. 1969); Louisiana State Board of Education v. Baker, 339 F.2d 911 (5th cir. 1964); Board of Supervisors of Louisiana State University v. Fleming, 265 F.2d 736 (5th cir. 1959); Orleans Parish School Board v. Bush, 242 F.2d 156 (5th cir. 1957), cert. den., 356 U.S. 969, 78 S.Ct. 1008, 2 L.Ed.2d 1074; School Board of City of Charlottesville v. Allen, 240 F.2d 59 (4th cir. 1956), cert. den. School Bd. of Arlington County v. Thompson, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664; Dorsey v. State Athletic Commission, 168 F.Supp. 149 (E.D. La. 1958), aff’d 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. The purpose of common law immunity enjoyed by the judiciary and legislature, here sought to be extended in a qualified form to the defendant Board and university president, is to preserve the integrity and independence of those bodies, and to insure that judges and legislators will act on their free, unbiased convictions, uninfluenced by apprehensions of consequences. Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Bauers v. Heisel, 361 F.2d 581 (3rd cir. 1966), cert. den., 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457; Kenney v. Fox, 232 F.2d 288 (6th" }, { "docid": "5429431", "title": "", "text": "put forward in their brief, that the case is one for three judges. That it is not such a case, the literature on the subject and all the controlling decisions make crystal clear. In Phillips v. U. S., 312 U.S. 246, at page 250, 61 S.Ct. 480, at page 483, 85 L.Ed. 800, the court said: “The history of § 266 (see Pogue State Determination of State Law, 41 Harv.L.Rev. 623, and Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795), the narrowness of its original scope, the piecemeal explicit amendments which were made to it (see Act of March 4, 1913, 37 Stat. 1013, and Act of February 13, 1925, 43 Stat. 936, amending § 238 of the Judicial Code), the close construction given the section in obedience to Congressional policy (see, for instance, Moore v. Fidelity & Deposit Co., [272 U.S, 317, 47 S.Ct. 105, 71 L.Ed. 273] supra; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699; Ex parte Collins, [277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990], supra; Oklahoma Gas [& Electric] Co. v. [Oklahoma] Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318; Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877; Ex parte Public National Bank, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Com’rs, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249), combine to reveal § 266 not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.” The judgment is reversed and the cause is remanded with directions to enter a judgment: declaring that refusing to allow plaintiffs and others similarly situated, because they are negroes, to make use, on a substantially equal basis with white citizens, of municipal facilities for playing golf, is to practice a forbidden discrimination which must be remedied; and enjoining defendants from continuing such practice. The decree, however, shall" }, { "docid": "2724924", "title": "", "text": "SOBELOFF, Chief Judge. The order of the District Court which we are called upon to review in this appeal is one entered on March 1, 1962, dissolving the injunction issued on July 31, 1956, against racial discrimination in the public schools of Arlington County, Virginia. After the passage of the 1956 injunction, there ensued appellate proceedings in this court, sub nom. School Board of City of Charlottesville, Virginia, et al. v. Allen, 240 F.2d 59 (4th Cir. 1956), which resulted in affirmance of the injunctive order. The School Board then sought certiorari, which was denied by the Supreme Court of the United States, School Bd. of Arlington County v. Thompson, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664 (1957). These steps and supplementary proceedings in the District Court occasioned delay of the injunction’s effective date until September, 1957. In September the School Board sought further suspension of the injunction. This the District Court refused. On the opening day of the school term seven Negro pupils, who applied for and were denied admission to all-white schools, moved the District Court for further relief. The court reviewed the Board’s various defenses and, finding that the pupils had been excluded on the basis of race, ordered their admission. Again the effective date of the order was stayed pending the outcome of an appeal by the School Board. This court affirmed the grant of relief to the plaintiffs. County School Board of Arlington County, Virginia v. Thompson, et al., 252 F.2d 929 (4th Cir. 1958), and the Board again sought certiorari in the Supreme Court, which was denied on May 19, 1958, 356 U.S. 958, 78 S.Ct. 994, 2 L.Ed.2d 1065 (1958). The effect of the stay order and the ensuing litigation was further to postpone desegregation. This did not exhaust the delays. In September, 1958, the School Board initiated a “request for guidance.” Again the effective date for compliance was moved forward, this time to February, 1959. This order too was appealed by the Board, but applications for further delay were denied by the District Court on January 28, 1959, by this" }, { "docid": "4332513", "title": "", "text": "have noted in Jones v. School Board of Alexandria, Virginia, 278 F.2d 72, 77 (4th Cir.1960), because of the existing racial pattern, in most cases “it will be Negro children, primarily, who seek transfers.” In the context of the present case, it is only they who have need for transfers. Speaking in a single voice on this point, this circuit has said in Bell v. School Board of Powhatan County, Virginia, 321 F.2d 494, 499 (4th Cir. 1963): “Further, their [School Board] counsel declared in oral argument: ‘If it is our duty to encourage integration, then we have violated our duty!’ The School Board has indeed violated its duty. It is upon the very shoulders of school boards that the major burden has been placed for implementing the principles enunciated in the Brown decisions. Quite explicitly the Court declared: ‘School authorities have the primary responsibility for elucidating, assessing, and solving these [varied local school] problems [attendant upon desegregation]; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.’ 349 U.S. 294, 299, 75 S.Ct. 753, 755 [99 L.Ed. 1083] (1955).” It is too late in the day for this school board to say that merely by the admission of a few plaintiffs, without taking any further action, it is satisfying the Supreme Court’s mandate for “good faith compliance at the earliest practicable date.” The right of the plaintiffs to obtain injunctive relief for the class they represent as well as individual relief for themselves is clear beyond doubt. School Board of the City of Charlottesville, Virginia v. Allen (County School Bd. of Arlington County v. Thompson), 240 F.2d 59 (4th Cir.1956), upheld the plaintiffs’ right “to obtain a general injunction against the school officials prohibiting racial discrimination in the administration of the schools * * Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118, 123 (4th Cir.1962). And these cases blazed no new trail. Injunctions were similarly ordered in Frasier v. Board of Trustees of University of North Carolina, 134 F. Supp. 589, 593 (M.D.N.C.1955) (three-judge court)," }, { "docid": "22809921", "title": "", "text": "not afford a formula which can be applied to a particular case with mathematical precision. See Green v. Board of Elections of City of New York, 380 F.2d 445, 448 (2d Cir. 1967). Fortunately, another Supreme Court decision, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), further clarified this test. In Bailey plaintiffs sought to enforce their rights to non-segregated transportation, allegedly refused them under color of state statutes. On appeal from an abstention order of a three-judge court, the Supreme Court held that the case was one for a single judge. Stressing that prior decisions had settled beyond argument that statutes requiring segregation of transportation were unconstitutional, the Court held: “Section 2281 does not require' a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Bell v. Waterfront Comm’n, 2 Cir., 279 F.2d 853, 857-858. We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. Willis v. Walker, D.C., 136 F.Supp. 181; Bush v. Orleans Parish School Board, D.C., 138 F.Supp. 336; Kelley v. Board of Education, D.C., 139 F.Supp. 578. We denied leave to file petitions for mandamus in Bush, 351 U.S. 948, 76 S.Ct. 854, 100 L.Ed. 1472, and from a similar ruling in Booker v. Tennessee Board of Education, 351 U.S. 948, 76 S.Ct. 856, 100 L.Ed. 1472. The reasons for convening an extraordinary court are inapplicable in such cases, for the policy behind the three-judge requirement — that a single judge ought not to be empowered to invalidate a state statute under a federal claim — does not apply. The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800.” Id. at S3, 82 S.Ct. at 551. (Emphasis supplied). The import of the Bailey decision was to make it clear that a substantial constitutional question was not in" }, { "docid": "8277977", "title": "", "text": "date file with this Court a detailed report setting out in detail the steps taken up to that time in conformity with this order. The Clerk shall serve copies of this order on each of the defendants by mailing by certified mail a copy of same to the address of their respective offices. . Other matters in reference to this suit are to be found in D.C., 324 F.Supp. 396 (motion for three judge court, denied) ; see also, D.C., 324 F.Supp. 439 (motion to recuse, denied); D.C., 324 F.Supp. 401 (motion to dismiss or for partial summary judgment, denied); D.C., 324 F. Supp. 456 (motion for implementation of Plaintiffs’ plan at mid-year denied) (defendant City School Board’s motion to vacate construction injunction, granted in part and denied in part) ; D.O., 53 F.R.D. 28 (motion for counsel fees, granted). . Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed. 2d 577 (1971); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). . Fourteenth Amendment to the Constitution of the United States; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); Brown v. Bd. of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). . 332 F.Supp. 055. See also, Northcross v. Board of Education, Memphis City Schools, et al (W.D.Tenn.Dec.1971); Dandridge v. Jefferson Parish School Board, D.C., 332 F.Supp. 590 (1971). . See, e. g., Adkins v. School Board of City of Newport News, D.C., 148 F.Supp. 430, aff’d. 4 Cir., 246 F.2d 325, cert. denied 355 U.S. 855, 78 S.Ct. 83, 2 L.Ed. 2d 63 (1957). . Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Griffin v. State Board of Education, D.C., 296 F. Supp. 1178 (1969). . A more detailed reference" }, { "docid": "15855380", "title": "", "text": "of three judges is not a different court from the District Court, but is the District Court composed of two additional judges sitting with the single District Judge before whom the application for injunction has been made. 28 U.S.C. § 2284(1). The purpose of the requirement of three judges for the hearing of such a case is to prevent the improvident invalidation of state legislation by action of a single judge. Phillips v. United States, 312 U.S. 246, 248-251, 61 S.Ct. 480, 85 L.Ed. 800. The presence of the two additional judges is not required where no substantial question as to the validity of the state legislation is involved. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 4, 78 L.Ed. 152; Davis v. County School Board of Prince Edward County, D.C., 142 F.Supp. 616. The same is held where no basis for injunctive relief is asserted. Linehan v. Waterfront Commission of New York Harbor, D.C., 116 F.Supp. 401 (a case decided after the enactment of 28 U.S.C. § 2284). A fortiori, it is not required that the additional judges be summoned, when, as here, it appears from the complaint itself that the case is not one within the jurisdiction of the court. Such a case is manifestly not one ‘required by Act of Congress to be heard and determined by a district court of three judges’ within the language of 28 U.S.C. § 2284. As said in Ex parte Poresky, supra, “ * * * the provision requiring the presence of a court of three judges necessarily assumes that the District Court has jurisdiction.’ “The rule laid down in Ex parte Poresky, supra, has not been changed by anything contained in 28 U.S.C. § 2284. That section was enacted to codify and clarify the practice with respect to the composition of and procedure before courts of three judges. Subsection 5 of the section was manifestly intended to regulate procedure after the court of three judges had been constituted, not to abrogate the salutary rule that the judge before whom the action was brought may dismiss it if the complaint" }, { "docid": "21211896", "title": "", "text": "August 6, 1965, and no final order was entered until August 23, 1965. The School Board petitioned this court for a stay of the in-junctive order, and by assignment of the Chief Judge of the circuit, the writer of this opinion, after taking testimony and hearing argument on August 25, 1965, granted a stay pending appeal. The Arlington school system opened the 1965-1966 school year under the new plan. . Bub nom. School Board of City of Charlottesville v. Allen, 240 F.2d 59 (4th Cir. 1956), cert. denied, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664 (1957), affirming Thompson v. County School Board of Arlington County, 144 F.Supp. 239 (E.D.Va.1956); Thompson v. County School Board of Arlington County, 252 F.2d 929 (4th Cir.), cert. denied, 356 U.S. 958, 78 S.Ct. 994, 2 L.Ed.2d 1065 (1958), affirming 159 F.Supp. 567 (E.D.Va.1957); Hamm v. County School Board of Arlington County, 263 F.2d 226 and 264 F.2d 945 (4th Cir. 1959), affirming in part and remanding in part Thompson v. County School Board of Arlington County, 166 F.Supp. 529 (E.D.Va.1958) ; Brooks v. County School Board of Arlington County, 324 F.2d 303 (4th Cir. 1963), reversing Thompson v. County School Board of Arlington County, 204 F.Supp. 620 (E.D.Va.1962). . Furthermore, the total amount of busing under the new arrangement is approximately the same as under the old. . Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). . That holding was followed in Downs v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965). C. Barksdale v. Springfield School Committee, 348 F.2d 261 (1st Cir. 1965), vacating 237 F.Supp. 543 (D.Mass.1965). Plaintiffs’ citation of Gilliam v. School Board of City of Hopewell, Virginia, 345 F.2d 325 (4th Cir. 1965), is also misplaced. This court there held that the school board could not he required to abandon neighborhood schools and transport pupils from one area to another solely for the purpose of integrating the schools. The Supreme Court vacated the" }, { "docid": "8110294", "title": "", "text": "County School Board of Roanoke County, 4 Cir., 305 F.2d 94; McCoy v. Greensboro City Board of Education, 4 Cir., 283 F.2d 667; Farley v. Turner, 4 Cir., 281 F.2d 131; School Board of the City of Newport News v. Atkins, 4 Cir., 246 F.2d 325; School Board of the City of Charlottesville v. Allen, 4 Cir., 240 F.2d 59; and see, from other circuits, such cases as Gibson v. Board of Public Instruction, 5 Cir., 272 F.2d 763; Northcross v. Board of Education of City of Memphis, 6 Cir., 302 F.2d 818. . Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. . Marsh v. County School Board of Roanoke County, 4 Cir., 305 F.2d 94; Green v. School Board of the City of Rcanoke, 4 Cir., 304 F.2d 118; Farley v. Turner, 4 Cir., 281 F.2d 131; Jones v. School Board of City of Alexandria, 4 Cir., 278 F.2d 72; Hamm v. County School Board of Arlington County, 4 Cir., 263 F.2d 226; Board of Education of St. Mary’s County v. Groves, 4 Cir., 261 F.2d 527; School Board of City of Norfolk v. Beckett, 4 Cir., 260 F.2d 18; County School Board of Arlington County v. Thompson, 4 Cir., 252 F.2d 929; Allen v. County School Board of Prince Edward County, 4 Cir., 249 F.2d 462; School Board of City of Newport News v. Atkins, 4 Cir., 246 F.2d 325; School Board of Charlottesville v. Allen, 4 Cir., 240 F.2d 59." }, { "docid": "16969010", "title": "", "text": "42 S.Ct. 164, 66 L.Ed. 325; Sovereign Camp, W. O. W. v. Murphy, S.D.Iowa, 17 F.Supp. 650, 652; Public Service Commission v. Brashear Freight Lines, Inc., 312 U.S. 621, 625, 61 S.Ct. 784, 85 L.Ed. 1083. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., D.C.E.D.Okl., 37 F.Supp. 93, 96, affirmed 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487; Tennessee Elec. Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 136, 59 S.Ct. 366, 83 L.Ed. 543. Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 54 S.Ct. 732, 78 L.Ed. 1318; Ex parte Collins, 277 U.S. 565, 569, 48 S.Ct. 585, 72 L.Ed. 990; California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 54 S.Ct. 732, 78 L.Ed. 1318. Cf. Pacific Elec. Ry. v. Los Angeles, 194 U.S. 112, 118, 24 S.Ct. 586, 48 L.Ed. 896. Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 54 S.Ct. 732, 78 L.Ed. 1318. See Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699. Cf. United States and Interstate Commerce Commission v. Alaska Steamship Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808; California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 392, 54 S.Ct. 732, 734, 78 L.Ed. 1318; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699. Cf. Hobbs v. Pollock, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353. California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. Cf. Public Service Commission v. Brashear Freight Lines, Inc., 312 U.S. 621, 625, 61 S.Ct. 784, 85 L.Ed. 1083. Gully v. Interstate Natural Gas Co., 292 U.S. 16, 19, 54 S.Ct. 565, 78 L.Ed. 1088. In the following cases, on special appeal to the Supreme Court from decisions of three judge district courts, the case was remanded" }, { "docid": "23304957", "title": "", "text": "cir. 1959); Orleans Parish School Board v. Bush, 242 F.2d 156 (5th cir. 1957), cert. den., 356 U.S. 969, 78 S.Ct. 1008, 2 L.Ed.2d 1074; School Board of City of Charlottesville v. Allen, 240 F.2d 59 (4th cir. 1956), cert. den. School Bd. of Arlington County v. Thompson, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664; Dorsey v. State Athletic Commission, 168 F.Supp. 149 (E.D. La. 1958), aff’d 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. The purpose of common law immunity enjoyed by the judiciary and legislature, here sought to be extended in a qualified form to the defendant Board and university president, is to preserve the integrity and independence of those bodies, and to insure that judges and legislators will act on their free, unbiased convictions, uninfluenced by apprehensions of consequences. Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Bauers v. Heisel, 361 F.2d 581 (3rd cir. 1966), cert. den., 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457; Kenney v. Fox, 232 F.2d 288 (6th cir. 1956), cert. den., 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66. Such considerations do not support extending, nor have courts extended, the doctrine to shield officials from the type of equitable relief here requested. We reach the major grounds of defendants’ motion for summary judgment of dismissal. The defendants’ principal contention is to this effect: Plaintiff was hired for a one year period. There was no breach or threatened breach of that contract by the defendants. As a non-tenured teacher, plaintiff can be removed “at pleasure” under Sec. 37.11(3), Wis. Stats. Such complete discretion in defendants is essential to keep the faculty at the “highest level of competency, responsibility, and devotion to duty”. The administrative decision not to rehire can be reached for “no reason or any reason”. It follows that no statement of reasons need be given, nor hearing offered. If a decision not to renew the employment contract of a non-tenured university professor may be based consciously and deliberately on the fact that he has written a scholarly letter to the" }, { "docid": "5384859", "title": "", "text": "155, Secs. 2281 to 2284, Title 28 U.S.C.; Stratton v. St. Louis Railway Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135; Ex Parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249; Query v. U. S., 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616; Hutcheson, “A Case for Three Judges”, 47 Harvard Law Review, 795; Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; Wilson v. Board of Supervisors, D.C., 92 F.Supp. 986. . Query v. U. S., note 4 supra, Phillips v. U. S., 312 U.S. at pages 246, 254, 61 S.Ct. 480, 85 L.Ed. 800; Oklahoma Gas Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318. RIVES Circuit Judge (dissenting). With considerable deference, I must, in good conscience dissent, though respectfully. This case presented, I think, purely a factual question, the decision of which was for the district judge, and commendably he shouldered the responsibility imposed upon him by law. Section 2281 of Title 28 United States Code, does not require a district court of three judges in every case when request ed in a complaint containing the necessary formal averments, but only when it is made to appear that a grant of the application would require the issuance of an injunction restraining the enforcement, operation or execution of a State statute upon the ground that such statute violates the Constitution of the United States. That section provides that such an injunction “shall not be granted * * * unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” (Italics supplied.) Under Section 2284, the first judge to take action upon an application for injunction is the district judge to whom the application is presented. His is the first responsibility to determine whether a three-judge court is required. The claim of unconstitutionality must present a substantial federal question. Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Stratton" }, { "docid": "16969011", "title": "", "text": "391, 54 S.Ct. 732, 78 L.Ed. 1318. See Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699. Cf. United States and Interstate Commerce Commission v. Alaska Steamship Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808; California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 392, 54 S.Ct. 732, 734, 78 L.Ed. 1318; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699. Cf. Hobbs v. Pollock, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353. California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. Cf. Public Service Commission v. Brashear Freight Lines, Inc., 312 U.S. 621, 625, 61 S.Ct. 784, 85 L.Ed. 1083. Gully v. Interstate Natural Gas Co., 292 U.S. 16, 19, 54 S.Ct. 565, 78 L.Ed. 1088. In the following cases, on special appeal to the Supreme Court from decisions of three judge district courts, the case was remanded to the district court for further proceedings to be taken independently of the .special procedure, for the reason that the controversy was not of such nature as to make the special procedure applicable. Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 392, 54 S.Ct. 732, 78 L.Ed. 1318 (no basis for equitable relief, the state officers being powerless to impose penalties under the circumstances); Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18, 54 S.Ct. 565, 78 L.Ed. 1088 (an assessment, rather than the statute under which it was made, was the basis for complaint); International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 304 U.S. 243, 251, 58 S.Ct. 875, 82 L.Ed. 1316 (complaint did not pray that enforcement of an Act of Congress be enjoined); Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 810, 83 L.Ed. 1242 (the statute assailed was not legislation “of general application”); Phillips v. United States, 312 U.S. 246, 252, 61 S.Ct. 480, 85 L.Ed. 800 (complaint did not attack" }, { "docid": "4332520", "title": "", "text": "v. School Board of City of Alexandria, Virginia, 278 F.2d 72 (4th Cir.1960); Hamm v. County School Board of Arlington County, Virginia, 263 F.2d 226 (4th Cir.1959); Board of Education of St. Mary’s County v. Groves, 261 F.2d 527 (4th Cir.1958); School Board of City of Norfolk, Virginia v. Beckett, 260 F.2d 18 (4th Cir.1957) ; County School Board of Arlington County, Virginia v. Thompson, 252 F.2d 929 (4th Cir.1958); Allen v. County School Board of Prince Edward County, Virginia, 249 F.2d 462 (4th Cir.1957); School Board of City of Newport News, Virginia v. Atkins, 246 F.2d 325 (4th Cir.1957); School Board of Charlottesville, Virginia v. Allen, 240 F.2d 59 (4th Cir.1956). And when the School Board of Arlington County, Virginia, recited that it had achieved a measure of desegregation and should, therefore, be relieved of the injunctive order, and its prayer was granted by the District Court, we reversed and ordered the injunction to be reinstated. Brooks v. School Board of Arlington County, Virginia, 324 F.2d 303 (4th Cir.1963). Again the language used in last term’s Frederick County case is appropriate here: “Under these circumstances, there would seem to be no obstacle to the entry of an order requiring the abandonment of these practices not later than the opening of the next school year. The district court, of course, may desire to hear further from the defendants before entering any orders with respect either to the injunction or the request for counsel fees.” Inasmuch as no hearing has been held we remand this case to the District Court for early proceedings not inconsistent with this opinion, upon the prayers for injunctive relief and for counsel fees. . Accord, Northcross v. Board of Education of City of Memphis, 302 F.2d 818 (6th Cir. 1962): “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-raeial organization of the Memphis school system. ***** “The judgment of the" } ]

[ { "docid": "9831591", "title": "", "text": "at 8. The BVA also found “no defect” in the effective date of April 27,1990, provided for the assignment of a 40% rating for CDD because “the medical records [] make it clear that there was a factual basis on which to award a 40 percent rating only as of April 27,1990.” R. at 11. A timely appeal to this Court followed. II. Analysis The appellant has not addressed the effective date of service connection for CDD, and the Court will consider that claim to have been abandoned as part of this appeal and will not address it. See Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328 (Fed.Cir.1997); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). Additionally, as to a claim first raised in the' appellant’s brief — that the BVA decision failed to address a reasonably raised claim for total disability on the basis of individual unemployability (TDIU) — the Secretary has proposed that the TDIU claim be remanded (see Secretary’s Brief (Br.) at 8-9), the appellant has agreed (see Reply Br. at 1), and the issue has since been the subject of June 30, 1995, RO decision granting TDIU (see Secretary’s June 12, 1996, Notice subsequent to BVA decision on appeal). However, the Court cannot remand a matter over which it has no jurisdiction, which requires a document that can properly be construed as an NOD expressing disagreement with an RO decision on the TDIU claim reasonably raised by Dr. Kucera’s April 1990 examination report (R. at 458) or an RO failure to adjudicate that claim. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Slater v. Brown, 9 Vet.App. 240, 244-45 (1996); Isenbart v. Brown, 7 Vet.App. 537, 540-41 (1995); Johnston v. Brown, 10 Vet.App. 80, 89-91 (1997) (Steinberg, J., concurring). Here, the NOD filed in March 1991 as to the November 1990 RO decision cannot be construed as disagreeing with an RO decision’s not adjudicating the TDIU claim reasonably raised by Dr. Kucera’s testimony. Hence, the RO’s failure to" } ]

[ { "docid": "1103716", "title": "", "text": "claim as to arthritis and myalgia, the BVA stated that “the service medical records are negative for those disorders”, and that a musculoskeletal disability was not shown until many years after the veteran’s military service and not until after his 1963 accident. Id. at 10. II. Analysis A. The Court’s Jurisdiction Over the Kidney-Disorder Claim Although neither party has raised the issue, the Court must first determine whether it has jurisdiction over the appealed claim. See Phillips v. General Services Admin., 924 F.2d 1577, 1579 (Fed.Cir.1991); Fugere v. Derwinski, 972 F.2d 331, 334 n. 5 (Fed.Cir.1992); Noll v. Brown, 5 Vet.App. 80, 82 (1993); Hamilton v. Brown, 4 Vet.App. 528, 541 (1993) (en banc). In order for this Court to have jurisdiction over a claim on appeal from an adverse BVA decision, a claimant or his or her representative must have filed with an RO a valid NOD with respect to that claim on or after November 18, 1988. Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (VJRA § 402); see Hamilton, 4 Vet.App. at 531. Furthermore, Hamilton held: “There can be only one valid NOD as to a particular claim until a. final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton, 4 Vet.App. at 538. To be valid for any purpose, an NOD must be in writing and must be filed by the claimant or his or her representative within one year after “the date of mailing of notice of the result of initial review or determination”. 38 U.S.C. § 7105(b)(1); see Rowell v. Principle 4 Vet.App. 9, 15 (1993), A BVA remand decision “is in the nature of a preliminary order and does not constitute a final Board decision.” 38 C.F.R. § 20.1100(b) (1993). Here, the veteran filed an NOD in May 1987 as to the RO’s disallowance of his claims for service connection for a kidney disorder, hypertension, myalgia, and arthritis. R. at 140. Those claims were pending on appeal to the" }, { "docid": "23365499", "title": "", "text": "1516, 1522, 1527 (Fed.Cir.1994) (an RO does not have the authority to collaterally review BVA final decisions). In the March 3, 1992, BVA decision (the decision on appeal), the BVA, finding that the appellant had submitted an informal claim through medical records submitted in March 1957, awarded an earlier effective date of March 5, 1957, for defective vision, but denied an effective date retroactive to 1946 and denied a rating in excess of 10%. The Board further determined without elaboration or explanation that the issue of whether the 1946 rating action was a result of CUE was not properly before the Board in 1990 and that, therefore, the findings of fact and conclusions of law pertaining thereto were merely dicta. The Board then reconsidered and once again denied the CUE claim. II. ANALYSIS In order for the Court to have jurisdiction over a case, the appellant must have filed a valid NOD as to that case on or after November 18, 1988. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Hamilton v. Brown, 4 Vet.App. 528, 531 (1993), aff'd, 39 F.3d 1574 (Fed.Cir.1994). The question presented here is whether under Hamilton the September 1990 document is a valid NOD for purposes of VJRA § 402 or whether the original January 1988 NOD is the only valid NOD as to those matters. We hold that the NOD filed in January 1988 initiated the appeal in this ease and that all subsequent adjudications of this disability claim, including the rating and the effective date (CUE) elements, were part of the case to which the January 1988 NOD applied. Recently the Federal Circuit in Hamilton v. Brown, 39 F.3d 1574 (Fed.Cir.1994) considered whether there can be more than one NOD relating to the same claim. The Federal Circuit essentially affirmed this Court’s opinion holding that there can only be one NOD relating to the same case. In that ease, appellant Hamilton filed an NOD in June 1986 when the RO denied his claim for service connection for post-traumatic" }, { "docid": "9860480", "title": "", "text": "on the part of the RO, such error was alleged to have been in the later RO decision, not those dating back to 1971 and/or 1974. R. at 108-09 (“For the following stated reasons I appeal the previous decision as erroneous.” (Emphasis added.)). Since the appellant did not present a claim of clear and unmistakable error under 38 C.F.R. § 3.105(a), the BVA’s decision to that effect must be affirmed. That is not to say that the appellant cannot, in the future, present a claim that there was CUE under 38 C.F.R. § 3.105(a) in the 1971 and 1974 RO rating decisions; we hold only that, as a matter of law, he has yet to do so. B. The above notwithstanding, we turn now to the issue of whether a jurisdiction-conferring NOD was filed because this Article I Court has jurisdiction over only those claims for which a valid NOD was filed on or after November 18, 1988. Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994); Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). For purposes of this analysis, we will assume that a cognizable claim of CUE was before the RO, either submitted directly by the appellant or on remand from the Board by virtue of the January 1992 argument. 1. “There can be only one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton, 4 Vet.App. at 538; West v. Brown, 7 Vet.App. 329, 332 (1995) (en banc) (“A successful claimant has not had his ease fully adjudicated until there is a decision as to all essential elements, i.e., status, disability, service connection, rating.”). In order to determine which, if any, of the appellant’s filings might be a jurisdiction-conferring NOD, the Court must first address whether the appellant’s CUE claim is a claim different from his reopened claim for service connection. If the CUE claim is found to" }, { "docid": "6781261", "title": "", "text": "136 F.3d 1296, 1299 (Fed.Cir.1998). Therefore, before a VARO or the BVA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. Cf. Hamilton v. Brown, 4 Vet.App. 528, 544 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994) (holding that VA’s failure to forward an application form to a claimant, who had submitted an informal claim under section 3.155(a), waives the requirement to file a formal application). The record contains no evidence that the appellant had ever expressed an intent to seek secondary service connection for his psychiatric condition prior to the Board’s decision. The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric condition. See, e.g., KL v. Brown, 5 Vet.App. 205, 208 (1993); Cratoford v. Brown, 5 Vet.App. 33, 35 (1993); cf. 38 C.F.R. § 3.157(b) (1997) (permitting certain medical reports to be accepted as an “informal claim for increased benefits or an informal claim to reopen”). While the Board must interpret the appellant’s submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant. See Talbert, supra. The appellant must have asserted the claim expressly or impliedly. See Isenbart, supra. In this case, where the claimant has failed to raise a particular claim before the VARO and BVA, there is neither a jurisdiction-conferring NOD nor a final BVA decision with respect to the issue of secondary service connection, and the Court lacks jurisdiction to review it on appeal. See 38 U.S.C. § 7252; VJRA § 402; Velez v. West, 11 Vet.App. 148, 157-58 (1998); see also Collaro and Ledford, both supra.; cf. In re Fee Agreement of Smith, 10 Vet.App. 311, 314 (1997) (holding that there was a final BVA decision for attorney-fee purposes where the BVA had failed to adjudicate a reasonably raised claim); Isenbart, supra. B. Extraschedular Rating The appellant also claims that it was prejudicial error for the Board to deny his claim for an extraschedular rating" }, { "docid": "18538775", "title": "", "text": "aff'd, 39 F.3d 1574 (Fed.Cir.1994). However, the February 1990 NOD (which did not itself expressly raise the § 3.321(b) extraschedular-rating question but said that the veteran's \"service[-]connected jaw condition is more severe than the 10 percent you have assigned”, Record (R.) at 329) gives the Board of Veterans’ Appeals (BVA or Board), in the first instance, jurisdiction to decide the merits of the extraschedular-rating question and the Court jurisdiction to review such decision because the extraschedular-rating question was subsumed within the original increased-rating claim submitted by the veteran in August 1989. It is precisely on that basis that the Court in West v. Brown held that the NOD filed as to the RO’s denial of service connection was also an NOD as to the rating and effective-date matters which the RO had never addressed. West, 7 Vet.App. 329, 331 (1995) (en banc). In Isenbart v. Brown, the Court expressly validated an NOD as to an issue (total disability based on individual unemploya-bility) that the RO should have but did not address when it denied a claim for an increased rating. Isenbart, 7 Vet.App. 537, 541 (1995), reconsid. and en banc review den., 8 Vet.App. 147 (1995). . See Fisher v. Brown, 4 Vet.App. 405, 407 (1993) (per curiam order) (Steinberg, J., concurring) (as to authority of Board to review or, in the first instance, adjudicate claims for special derivative individual unemployability benefits under 38 C.F.R. § 4.16(b)). . See Fisher, 4 Vet.App. at 407 n. 2. . See Malgapo v. Derwinski, 1 Vet.App. 397, 399 (1991) (quoting 38 U.S.C. § 7105(b)(1) in defining agency of original jurisdiction (AOJ) as \"any [VA] activity ... 'which entered the determination with which disagreement is expressed' ”), overruled in part on other grounds, Hamilton, 4 Vet.App. at 538, 38 C.F.R. § 20.3(a) (1995). . See infra note 11. . The majority’s circular analysis extends to citation of another, regulation, 38 C.F.R. § 19.9 (1995), to \"support[ ]\" its interpretation that the Board is precluded from awarding an extra-sche-dular rating in the first instance. Ante at 95-96. That regulation provides no such support since the" }, { "docid": "6782963", "title": "", "text": "agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; 38 U.S.C. § 7105; Barrera v. Gober, 122 F.3d 1030, 1031 (Fed.Cir.1997); Grantham v. Brown, 114 F.3d 1156, 1157 (Fed.Cir.1997); Velez, 11 Vet.App. at 157 (“Court has no jurisdiction over an issue absent a post-November 18, 1988, NOD, expressing disagreement with an RO’s decision on that issue or with an RO’s failure to adjudicate that [issue]”). An NOD is defined by regulation as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result”; it “must be in terms which can be reasonably construed as [expressing] disagreement with that determination and a desire for appellate review”. 38 C.F.R. § 20.201 (1997); see also Beyrle v. Brown, 9 Vet.App. 24, 27 (1996); Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed.Cir. 1994). “Whether a document is an NOD is a question of law for the Court to determine de novo under 38 U.S.C. § 7261(a).” Beyrle, 9 Vet.App. at 27-28; see also Hamilton, 4 Vet.App. at 538-44 (determining whether jur-isdietionally valid NOD had been filed with respect to claim without having had such determination made by the Board), aff'd, 39 F.3d at 1584-85. There can be only one valid NOD as to a particular issue until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. See Hamilton, 4 Vet.App. at 531-32, aff'd, 39 F.3d 1581-85. Just as the Court’s jurisdiction is dependent on a jurisdiction-conferring NOD, the Board’s jurisdiction, too, derives from a claimant’s NOD. See Marsh v. West, 11 Vet.App. 468 (1998) (“untimely NOD deprives [BVA] of jurisdiction”); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). When the Board has jurisdiction over a particular matter, that jurisdiction" }, { "docid": "11961519", "title": "", "text": "on appeal stated that an appeal had been taken from the December 1987 RO decision for, inter alia, a compensable evaluation for the left-eye condition, and confirmed that previous decision. Suppl.R. at 42. In a January 1991 BVA decision, the Board determined that it had jurisdiction over the veteran’s left-eye claim and remanded the ease to the RO so that the veteran could be furnished an SSOC that included a summary of pertinent law and regulations (regarding claims, other than the eye condition, that were also on appeal). R. at 126-27. In February 1991, the RO issued an SSOC. R. at 129-32. In the September 1991 BVA decision here on appeal, the Board, inter alia, denied a compensable evaluation for the veteran’s left-eye disability. Grantham, BVA 91-26911 at 8. C. Analysis This Court’s appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). The Court’s opinion in Hamilton v. Brown clearly established that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant”, Hamilton, 4 Vet.App. 528, 538 (1993), aff'd 39 F.3d 1574, 1584-85 (Fed.Cir.1994). This case presents a question whether under West an original NOD disagreeing with an RO’s denial of service connection for a particular disability is the only valid NOD such" }, { "docid": "6779299", "title": "", "text": "and that the appellant has not sufficiently raised a claim for service connection for bilateral chronic arthritis of the ankles. Br. at 21-22. The Secretary concedes that a claim for leg scars from in-service shell-blast wounds was not adjudicated and should be remanded (Br. at 1, 20-21) but maintains that the BVA decision should be affirmed in all other respects (Br. at 1, 23). A. Miscellaneous Claims In his brief, the appellant expressly excepts his bilateral-eye-disorder claim from his request that the BVA determinations be reversed or vacated (R. at 3, 7, 21); thus, the Court considers that he has abandoned that claim on appeal and will not review it. See Ford v. Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328 (Fed.Cir.1997). In regard to the appellant’s claim for service connection for bilateral-ankle arthritis, we hold that the record provides no evidence of the veteran’s having filed either a formal or an informal claim under 38 U.S.C. § 5101(a) or 38 C.F.R. § 3.155 (1998); see also Jones (Ethel) v. West, 136 F.3d 1296, 1299 (Fed.Cir.1998), nor is there evidence of an NOD conferring jurisdiction on this Court as to an RO’s determination on or failure to adjudicate this claim. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Hazan v. Gober, 10 Vet.App. 511, 516-17 (1997); Isenbart v. Brown, 7 Vet.App. 537, 540 (1995); Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993), aff'd, 39 F.3d 1574 (1994). B. Well Groundedness of Service-Connection Claims The Board found, without analysis, “that the [appellant’s] claims are ‘well grounded’ ”. R. at 6. In a claim for service connection, a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C. § 5107(a); see also Robinette v. Brown, 8 Vet.App. 69, 73 (1995). A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim" }, { "docid": "15792753", "title": "", "text": "for all periods after July 1989, because no additional benefit would be available to the [appellant] for that period” where he already had a 100% schedular rating for heart disease. Brief at 4, 6-7; Addendum at 1. This Court has adopted the jurisdictional restrictions of the case or controversy rubric under Article III of the Constitution of the United States. See Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990); see also Aronson v. Brown, 7 Vet.App. 153, 155 (1994). When there is no case or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction. See Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order). Consequently, the Court will dismiss the appeal with respect to the post-July 1989 TDIU claim because no case or controversy remains. See Aronson and Mokal, both supra. The appellant argues, in essence, that he should be granted a TDIU rating due to PTSD for the period from August 1986 to July 1989, a period that is prior to the effective date of his 100% rating for heart disease. He contends that such a TDIU rating is warranted because the medical evidence supports the conclusion that his PTSD rendered him unemployable at that time. Brief at 4-6. The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992). In general, the Court has jurisdiction to review a final BVA decision only where a Notice of Disagreement (NOD) was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to an underlying RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993) (en banc), aff'd, 39 F.3d 1574, 1583-85 (Fed.Cir.1994). The exception to that general rule is 38 U.S.C. § 7111, which permits an appeal to this Court of a Board decision on clear and unmistakable error (CUE) in a prior Board decision," }, { "docid": "15792754", "title": "", "text": "100% rating for heart disease. He contends that such a TDIU rating is warranted because the medical evidence supports the conclusion that his PTSD rendered him unemployable at that time. Brief at 4-6. The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992). In general, the Court has jurisdiction to review a final BVA decision only where a Notice of Disagreement (NOD) was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to an underlying RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993) (en banc), aff'd, 39 F.3d 1574, 1583-85 (Fed.Cir.1994). The exception to that general rule is 38 U.S.C. § 7111, which permits an appeal to this Court of a Board decision on clear and unmistakable error (CUE) in a prior Board decision, which is an original claim to the Board, without a jurisdiction-conferring NOD. See Pub.L. No. 105-111, § 1(c)(2), 111 Stat. 2271, 2272 (1997). In all other cases, the Board’s jurisdiction is dependent on the appellant’s having filed an NOD. See 38 U.S.C. § 7105(a), (c); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). This Court’s jurisdiction is derivative of the Board’s jurisdiction, 38 U.S.C. § 7252(a), and the Court has jurisdiction to assess its own jurisdiction, see Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996); Smith (Irma) v. Brown, 10 Vet.App. 330, 332 (1997). In the instant case, because the appellant did not appeal to the U.S. Court of Appeals for the Federal Circuit the Court’s March 1998 denial of the pre-July 1989 TDIU rating, that denial became final, see 38 U.S.C. § 7291, and may not be reconsidered based on the same factual basis, see 38 U.S.C. § 7104(b); see also 38 U.S.C. §§ 5108, 5109A, 7111. The" }, { "docid": "16957481", "title": "", "text": "The Board raised the matter of the timeliness of the NOD for the first time in its decision and dismissed the veteran’s appeal due to an untimely NOD. The Board, noting that the postmark on the envelope containing the veteran’s NOD was not of record, stated that there was no proof that the NOD had actually been mailed on the April 3, 1995, date on it, and concluded that the NOD bore a date-stamp showing that it had been received at the RO on April 19,1995. A subsequent motion for BVA reconsideration was denied, and the appellant timely appealed to the Court. II. Analysis A. Court’s Jurisdiction This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990). In general, the Court has jurisdiction to review a final BVA decision only where an NOD was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to the underlying RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993) (en banc), aff'd, 39 F.3d 1574, 1583-85 (Fed.Cir.1994). But see Pub.L. No. 105-111, § 1(c)(2), 111 Stat. 2271, 2272 (1997) (permitting appeal to this Court of Board decision on clear and unmistakable error in prior Board decision, which is an original claim to the Board, without jurisdiction-conferring NOD). It is equally clear that the Court has jurisdiction to assess its own jurisdiction. See Smith (Irma) v. Brown, 10 Vet.App. 330, 332 (1997) (“Court always has jurisdiction to determine its jurisdiction over a ease”); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996) (“it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating" }, { "docid": "6782962", "title": "", "text": "in April 1993 specifically discussing the veteran’s complaints of back pain and describing the in-service injury to his back. R. at 193. Accordingly, the Court holds that the veteran filed a claim for service connection for his back in 1945, and that that claim has never been adjudicated. The Secretary apparently concedes this. See Br. at 14 (Secretary “acknowledges” that appellant’s back claim “has never been adjudicated by the BVA”). This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Ve lez v. West, 11 Vet.App. 148, 157 (1998); Skinner v. Derwinski 1 Vet.App. 2, 3 (1990). The Court has jurisdiction to review only those final BVA decisions prior to which a Notice of Disagreement (NOD) was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; 38 U.S.C. § 7105; Barrera v. Gober, 122 F.3d 1030, 1031 (Fed.Cir.1997); Grantham v. Brown, 114 F.3d 1156, 1157 (Fed.Cir.1997); Velez, 11 Vet.App. at 157 (“Court has no jurisdiction over an issue absent a post-November 18, 1988, NOD, expressing disagreement with an RO’s decision on that issue or with an RO’s failure to adjudicate that [issue]”). An NOD is defined by regulation as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result”; it “must be in terms which can be reasonably construed as [expressing] disagreement with that determination and a desire for appellate review”. 38 C.F.R. § 20.201 (1997); see also Beyrle v. Brown, 9 Vet.App. 24, 27 (1996); Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed.Cir." }, { "docid": "6781260", "title": "", "text": "that the medical evidence established a well-grounded claim for such a condition, the appellant has not filed a claim for secondary service connection. “A specific claim in the form prescribed by the Secretary ... must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.” 38 U.S.C. § 5101(a); see also 38 C.F.R. § 3.151(a) (1997). A claim “means a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (1997) (emphasis added). “Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs ... may be considered an informal claim. Such informal claim must identify the benefit sought.” 38 C.F.R. § 3.155(a) (1997) (emphasis added). “Section 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid.” Jones v. West, 136 F.3d 1296, 1299 (Fed.Cir.1998). Therefore, before a VARO or the BVA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. Cf. Hamilton v. Brown, 4 Vet.App. 528, 544 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994) (holding that VA’s failure to forward an application form to a claimant, who had submitted an informal claim under section 3.155(a), waives the requirement to file a formal application). The record contains no evidence that the appellant had ever expressed an intent to seek secondary service connection for his psychiatric condition prior to the Board’s decision. The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric condition. See, e.g., KL v. Brown, 5 Vet.App. 205, 208 (1993); Cratoford v. Brown, 5 Vet.App. 33, 35 (1993); cf. 38 C.F.R. § 3.157(b) (1997) (permitting certain medical reports to be accepted as an “informal claim for increased benefits or an" }, { "docid": "6779300", "title": "", "text": "see also Jones (Ethel) v. West, 136 F.3d 1296, 1299 (Fed.Cir.1998), nor is there evidence of an NOD conferring jurisdiction on this Court as to an RO’s determination on or failure to adjudicate this claim. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Hazan v. Gober, 10 Vet.App. 511, 516-17 (1997); Isenbart v. Brown, 7 Vet.App. 537, 540 (1995); Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993), aff'd, 39 F.3d 1574 (1994). B. Well Groundedness of Service-Connection Claims The Board found, without analysis, “that the [appellant’s] claims are ‘well grounded’ ”. R. at 6. In a claim for service connection, a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C. § 5107(a); see also Robinette v. Brown, 8 Vet.App. 69, 73 (1995). A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded service-connection claim under 38 U.S.C. § 1110 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service' incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Caluza, 7 Vet.App. at 506; see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998) (mem.); Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)). Alternatively, the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was “noted” during service or during an applicable presumption period; (b) evidence" }, { "docid": "6782967", "title": "", "text": "with RO failure to adjudicate particular claim). Hence, the Court holds that the September 1993 letter constituted an NOD as to the RO’s failure to adjudicate the veteran’s back claim. Accordingly, we have jurisdiction to remand the matter of the Board’s failure to adjudicate the veteran’s back claim in its 1996 decision. See VJRA § 402; Hamilton, 4 Vet.App. at 531, aff'd 39 F.3d at 1584-85; see also Collaro v. West, 12 Vet.App. 63, (1998) (remanding claim to Board for failure to consider arguments unaddressed in BVA decision on appeal); Meeks v. Brown, 5 Vet.App. 284, 287 (1993) (Court remands matter that Board failed to adjudicate); Russell v. Principi, 3 Vet.App. 310, 320 (1992) (en banc) (Court remands for BVA to determine, in first instance, whether error made by RO in 1972 was “clear and unmistakable error”); Isenhart v. Derwinski 3 Vet.App. 177 (1992) (failure to adjudicate claim for pension resulted in that claim remaining open despite grant of subsequent claim for pension and open claim remanded for adjudication of whether pension should be awarded for period prior to effective date of the later award); see generally Suttmann and Solomon, both supra. III. Conclusion Upon consideration of the foregoing analysis, the ROA, and the submissions of the parties, the Court vacates the October 1, 1996, BVA decision and remands both matters for expeditious further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1131, 5107, 7104(a), (d)(1); 38 C.F.R. §§ 3.251, 3.266 (1949); 38 C.F.R. § 3.158(a), (b); Karnas, 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. 103-446, § 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) [hereinafter VBIA § 302]. See Allday, 7 Vet.App. at 533-34. Because of the appellant’s age and the RO and BVA’s failure to adjudicate his back claim, first presented in 1945, the" }, { "docid": "16947271", "title": "", "text": "also contends that the Board failed to address an implicit secondary-serviee-eonnection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition. It is true that the Board must liberally construe all submissions. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991). However, this Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990). The Court has no jurisdiction over an issue absent a post-November 18, 1988, NOD, expressing disagreement with an RO’s decision on that issue or with an RO’s failure to adjudicate that claim. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Slater v. Brown, 9 Vet. App. 240, 244-45 (1996); Isenbart v. Brown, 7 Vet.App. 537, 540-41 (1995); see also Barrera v. Gober, 122 F.3d 1030, 1032 (Fed.Cir.1997) (“veteran’s overall claim, or case, for benefits is comprised of separate issues, and ... Court of Veterans Appeals has jurisdiction to consider an appeal concerning one or more of those issues, provided a[n] NOD has been filed after the effective date of the [VJRA] with regard to the particular issue”); Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed.Cir.1997); see also Johnston v. Brown, 10 Vet.App. 80, 89-91 (1997) (Steinberg, J., concurring) (“absent a valid NOD as to the ... claim in this case, the Court lacks jurisdiction to remand that claim to the BVA”). Because the Court can find no jurisdiction-conferring NOD in the record as to the RO’s failure to adjudicate a secondary-service-connection claim for a gastrointestinal disorder, such a claim is not properly before the Court. Compare Ledford v. West, 136 F.3d 776, 779-80 (Fed.Cir.1998) (Court lacked jurisdiction over constitutional challenge as to denial of claim for total disability based on individual unemployability (TDIU)" }, { "docid": "11961520", "title": "", "text": "also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). The Court’s opinion in Hamilton v. Brown clearly established that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant”, Hamilton, 4 Vet.App. 528, 538 (1993), aff'd 39 F.3d 1574, 1584-85 (Fed.Cir.1994). This case presents a question whether under West an original NOD disagreeing with an RO’s denial of service connection for a particular disability is the only valid NOD such that a subsequent RO adjudication (prior to the issuance of an SOC and the filing of a 1-9 Appeal) granting-service connection and assigning a rating would be part of the case to which the original NOD applied, and a request for a higher disability rating thus would not constitute a separate claim as to which a separate NOD may be filed. In West, the veteran’s claim for VA disability compensation had been denied in March 1987. In January 1988, he filed an NOD, and subsequently a VARO issued an SOC. In September 1988, the BVA remanded the claim. In March and December 1989, the RO continued the denial of service connection for the claim. In June 1990, the BVA granted entitlement to service connection and returned the claim to the RO for assignment of a disability rating. In July 1990, the RO assigned a rating and an effective date. In September 1990, the veteran filed an “NOD” as to the July 1990 RO decision. In March 1992, the BVA awarded an earlier effective date but" }, { "docid": "18538774", "title": "", "text": "rating, it is unclear how the Board is to “proceed in compliance” with any regulation or how the appellant can “eontinue[ ] to appeal” the.rating. The majority has not remanded the extra-schedular-rating issue under Bernard, as it should do, and so there is no basis on which the Board can proceed unless it decides sua sponte to reconsider the increased-rating claim after issuance of the Court’s mandate. The Court’s affirmance of the Board’s 10% rating otherwise brings this particular rating-increase claim to a close. For the foregoing reasons, I respectfully dissent to the extent I have indicated above. . In this case, no explicit Notice of Disagreement (NOD) was filed as to the question of an extras-chedular rating, and that question was not addressed by the Department of Veterans Affairs (VA) regional office (RO) in its December 1989 decision. See Veterans' Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105, 4122, § 402 (found at 38 U.S.C. § 7251 note); 38 U.S.C. § 7105; see generally Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). However, the February 1990 NOD (which did not itself expressly raise the § 3.321(b) extraschedular-rating question but said that the veteran's \"service[-]connected jaw condition is more severe than the 10 percent you have assigned”, Record (R.) at 329) gives the Board of Veterans’ Appeals (BVA or Board), in the first instance, jurisdiction to decide the merits of the extraschedular-rating question and the Court jurisdiction to review such decision because the extraschedular-rating question was subsumed within the original increased-rating claim submitted by the veteran in August 1989. It is precisely on that basis that the Court in West v. Brown held that the NOD filed as to the RO’s denial of service connection was also an NOD as to the rating and effective-date matters which the RO had never addressed. West, 7 Vet.App. 329, 331 (1995) (en banc). In Isenbart v. Brown, the Court expressly validated an NOD as to an issue (total disability based on individual unemploya-bility) that the RO should have but did not address when it denied a" }, { "docid": "16957482", "title": "", "text": "review a final BVA decision only where an NOD was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to the underlying RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993) (en banc), aff'd, 39 F.3d 1574, 1583-85 (Fed.Cir.1994). But see Pub.L. No. 105-111, § 1(c)(2), 111 Stat. 2271, 2272 (1997) (permitting appeal to this Court of Board decision on clear and unmistakable error in prior Board decision, which is an original claim to the Board, without jurisdiction-conferring NOD). It is equally clear that the Court has jurisdiction to assess its own jurisdiction. See Smith (Irma) v. Brown, 10 Vet.App. 330, 332 (1997) (“Court always has jurisdiction to determine its jurisdiction over a ease”); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996) (“it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits”); Phillips v. Brown, 10 Vet.App. 25, 30 (1997). _ We thus proceed to consider the question of this Court’s jurisdiction to review the BVA’s decision on the timeliness of the NOD. In order for there to be an NOD that complies with VJRA § 402 and thus give this Court jurisdiction over an appeal, there must be a document that meets the definition of an NOD in law and regulation, see 38 C.F.R. § 20.201 (1997); Hamilton, 4 Vet.App. at 535-36, and that is filed within one year after the date of mailing of notice of the RO’s determination. See 38 U.S.C. § 7105(b)(1). This is not a case where it is undisputed that the veteran timely filed an NOD on a substantive issue and in which the Board sua sponte raised a jurisdictional matter other than one pertaining to whether there was a valid NOD; in such a case, the NOD on the substantive issue would appear to encompass also any question of jurisdiction because a claim that an administrative agency or" }, { "docid": "11968745", "title": "", "text": "to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. 38 C.F.R. § 20.1001(a). This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend that jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Premier v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski 1 Vet.App. 2 (1990). In establishing this Court, Congress mandated that only cases “in which a notice of disagreement [has been] filed under section [7105] ... of title 38, United States Code, on or after [November 18, 1988]” would be heard by this Court. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); 38 U.S.C. § 7251 note; see also Burton v. Derwinski, 933 F.2d 988, 989 (Fed.Cir.1991) (“a notice of disagreement has a specific meaning in the context of these cases: it is a document that initiates an appeal from an agency of original jurisdiction.”). This Court, sitting en banc, has held that “[t]here can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). Thus, the jurisdiction-conferring NOD referred to in VJRA § 402 is a written communication that initiates appellate review of an initial determination by the agency of original jurisdiction. Hamilton, 39 F.3d at 1582, aff'g 4 Vet.App. at 535-37. Here, the- appellant filed an NOD in September 1990 respecting an RO decision refusing to reopen his claim. Propelled by that NOD, the BVA issued a decision in August 1991. In response to the August 1991 decision, the appellant filed a motion for reconsideration of that, and only that, Board decision. The" } ]

[ { "docid": "2935465", "title": "", "text": "verdict. The appellant concedes that the jury properly could have inferred that there existed an antecedent conspiracy to obtain by coercion a statement from Leyva. Hunt argues, however, that there was insufficient evidence, because Leyva was not a witness within the meaning of 18 U.S.C.A. § 1503 since there was no proceeding before a court of the United States against Guerrero in which Levya could have been a witness. This argument is without merit. This Court defines a “witness” as one who “knows or is supposed to know material facts, and is expected to testify to them, or to be called on to testify * * * as a witness.” Odom v. United States, 5 Cir. 1941, 116 F.2d 996, reversed on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511. Accord: United States v. Grunewald, 2 Cir. 1956, 233 F.2d 556, reversed on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; Smith v. United States, 8 Cir. 1921, 274 F. 351; United States v. Perlstein, 3 Cir. 1942, 126 F.2d 789, cert, denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752. It is clear that Leyva knew material facts and that as an informer he had given his information to the Government and expected to testify to those facts in the future. The fact that the conspiracy was brought to fruition after the preliminary hearing but before the convening of a grand jury should not relieve Hunt from responsibility for his actions. Section 1503 comes into play at least when a complaint has been filed with a United States Commissioner. United States v. Scoratow, W.D.Pa.1956, 137 F.Supp. 620; United States v. Bit-tinger, D.C.1876, 24 Fed.Cas.No.14,598, p. 1149. The statute, 18 U.S.C. § 1503, is designed to prevent what occurred in this case and to punish those responsible for what happened to Leyva. If any witness ever needed protection of the law, it was Paul Leyva. If any persons ever needed restraint, it was the group who maltreated Paul Leyva. II. The second issue the appellant raises is whether the indictment states an offense" } ]

[ { "docid": "9681029", "title": "", "text": "methods.” Yet this is precisely the result to which [appellant’s] urged construction would lead. If witness tampering should fall exclusively under section 1512, and if the accused used a method other than one prescribed in section 1512 (intimidation, physical force, threats, harassment, or misleading conduct), that conduct would no longer be prohibited. Neither section 1503 nor section 1512 would cover it. We agree and hold that witness tampering is punishable under § 1503. However, the two statutes are not coextensive. For example, § 1512 is not restricted to witnesses but protects “any person” involved in an official proceeding. By comparison, § 1503 protects only “witnesses,” as well as grand and petit jurors and court officers, although witness status has been expansively construed and applied. See, e.g., United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979) (rejecting limitation of “witness” for purposes of § 1503 to only while case is pending in trial court), cert. dismissed, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980); United States v. Jackson, 168 U.S.App.D.C. 198, 513 F.2d 456, 460 (1975) (fact that witness was discharged is immaterial to witness status for purposes of § 1503). In addition, § 1512 is expressly not limited to “pending” official proceedings, 18 U.S.C. § 1512(d)(1), or by considerations of admissibility, id. § 1512(d)(2), and thus “explicitly covers ‘po tential’ witnesses and those witnesses whose testimony might not be admissible at trial.” United States v. Hernandez, 730 F.2d at 898. By comparison, “[a] prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator. A grand jury investigation is such a proceeding.” United States v. Vesich, 724 F.2d 451, 454 (5th Cir.1984) (citations omitted). Moreover, § 1512 prohibits only specific types of conduct — intimidation, physical force, threats, or attempts to do so, misleading conduct, or harassment. 18 U.S.C. § 1512(a),(b); e.g., United States v. King, 762 F.2d at 238; United States v. Lester, 749 F.2d at 1293. In particular, § 1512 prohibits intimidation and harassment, thus “establishing a lower threshold of criminal activity [than § 1503].” United States" }, { "docid": "18778651", "title": "", "text": "not preclude their being convicted under § 1503. Similarly, the issue in United States v. Vesich, 724 F.2d 451 (5 Cir.1984), was whether proceedings in fact were pending and whether the defendant had knowledge of such proceedings, not whether the defendant knew such proceedings to be federal in nature. As the Vesich court stated, “[a] prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator.” Id. at 454 (citing Pettibone, supra, 148 U.S. at 205-07; Odom v. United States, 116 F.2d 996, 998 (5 Cir.), rev’d on other grounds, 313 U.S. 544 (1941)). The specific concerns of the Vesich court were whether grand jury proceedings in fact were pending, -and whether there was sufficient evidence to establish that the defendant knew such proceedings were pending and that the witness he wished to influence was to testify before that body. While dicta in Baker and Vesich incidentally may merge thé jurisdictional and scienter discussion because of the specific facts in those cases, they do not persuade us that, where a single judicial proceeding is known to be pending, the government must establish that appellants knew that justice was being administered in a federal court. Our refusal to add to the statute a scienter requirement, in the absence of congressional intent to the contrary, is consistent with the Supreme Court’s analyses of other statutes in United States v. Feola, 420 U.S. 671 (1975), and United States v. Yermian, 104 S.Ct. 2936 (1984). In a prosecution under the federal assault statute, 18 U.S.C. § 111, the Feola Court held that the statute does not require proof that the defendant knew the victim was a federal officer. “The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.” 420 U.S. at 685. Feola also made clear that the conspiracy statute, 18 U.S.C. § 371, does not require a showing that the defendant knew his conduct violated federal law. Id. at 687." }, { "docid": "18778650", "title": "", "text": "proceeding. The Sixth Circuit, however, held that there was insufficient evidence to establish that the threat related to the officer’s testimony in a federal proceeding. There the officer had arrested the defendant several times. The officer’s testimony in the federal proceeding was not the only conduct to which the threat could have applied. Id. at 1265. As the court stated, “[t]he mere existence of that federal proceeding is not sufficient to establish or support any inference, that the federal proceeding was the focus of the alleged threat.” Id. In Baker the issue was whether the proceeding which the defendant intended to influence by threatening a witness was federal or not, not whether the defendant knew that it was federal. In the instant case there is no doubt that the subject of appellants’ discussions and the provision of vomit-inducing medication related to the pending criminal prosecution against the Curcios in the federal court. That appellants did not know (or their conversations did not suggest that they knew) in which court the Curcios were being tried does not preclude their being convicted under § 1503. Similarly, the issue in United States v. Vesich, 724 F.2d 451 (5 Cir.1984), was whether proceedings in fact were pending and whether the defendant had knowledge of such proceedings, not whether the defendant knew such proceedings to be federal in nature. As the Vesich court stated, “[a] prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator.” Id. at 454 (citing Pettibone, supra, 148 U.S. at 205-07; Odom v. United States, 116 F.2d 996, 998 (5 Cir.), rev’d on other grounds, 313 U.S. 544 (1941)). The specific concerns of the Vesich court were whether grand jury proceedings in fact were pending, -and whether there was sufficient evidence to establish that the defendant knew such proceedings were pending and that the witness he wished to influence was to testify before that body. While dicta in Baker and Vesich incidentally may merge thé jurisdictional and scienter discussion because of the specific facts in those cases, they do not persuade us" }, { "docid": "22936805", "title": "", "text": "investigation and a grand jury must be shown so as to avoid meaningless formality, see Walasek, 527 F.2d at 678, but the record in this case is devoid of any evidence of such a connection. There is no testimony that the subpoena was issued in furtherance of an ongoing or presently contemplated presentation of evidence to the grand jury. We cannot, consistent with our precedent, find Agent Delia’s testimony about the subpoena sufficient to sustain Davis’s conviction. There is another fundamental flaw in the government’s case. A person who lacks knowledge or notice of a pending proceeding necessarily lacks the intent to obstruct that proceeding. See Aguilar, 515 U.S. at 599, 115 S.Ct. 2357; Pettibone v. United States, 148 U.S. 197, 206, 13 S.Ct. 542, 37 L.Ed. 419 (1893). The Aguilar Court explained that recent decisions of the appellate courts have placed certain boundaries on § 1503’s apparently broad sweep. For example, the defendant’s action “must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority.” Aguilar, 515 U.S. at 599, 115 S.Ct. 2357 (citing Brown, 688 F.2d at 598). “[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” Id. The government concedes that there is no record evidence that Davis had actual knowledge of a grand jury proceeding, but argues that the evidence was sufficient to support a conviction on the ground that Davis inferred that a grand jury investigation was pending. Davis knew that Sabol had been convicted in Georgia on serious drug charges and was facing a twenty-year prison term. He received assurances from a FBI agent that Sabol would serve a lengthy sentence. In light of the fact that Davis was a police officer, the District Court found that there was a sufficient basis to conclude that Davis knew or believed that Sabol was only out of prison because he was an informant or cooperating witness" }, { "docid": "13461064", "title": "", "text": "6,1982 telephone conversation between Vesich, a New Orleans attorney of many years’ experience and state civil district court commissioner, and Robert Fragale, a former client of Ve-sich. The government claimed that during that conversation and a January 5, 1982 meeting, Vesich “advised, urged, and attempted to persuade Fragale” to testify falsely before the federal grand jury. The record indicates that at the time of those conversations, Fragale had been told by Assistant United States Attorney Albert Winters that he would be called to testify before a federal grand jury. Winters expected to call Fragale to testify before the United States Grand Jury empaneled in December, 1981 in the Eastern District of Louisiana at New Orleans, and he had taken steps to initiate that appearance: he had secured a written agreement from Fragale to testify whenever called and a state narcotics charge against Fragale had been transferred into federal court. On Decem ber 17, 1981, a federal complaint was filed against Fragale. Winters planned to secure an indictment of Fragale from the December grand jury within thirty days of the complaint, and did so on January 8, 1982. It was his office’s general policy to call cooperating witnesses who were under indictment to testify before the same grand jury that indicted them. Winters testified that, pursuant to his office’s normal practice when a witness is cooperating with a government investigation, he did not formally subpoena Fragale to testify. Without attempting to “articulate any necessary minimum set of circumstances,” we are persuaded that this evidence, if viewed in the light most favorable to the government, is sufficient, though perhaps minimally so, to establish the existence of a pending proceeding. Our conclusion is buttressed by our previous decisions requiring that the definition of “witness” under section 1503 be “determined with a view to substance, rather than form.” United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979), cert. denied, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980), quoting United States v. Grunewald, 233 F.2d 556, 571 (2d Cir.1956), rev’d on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931" }, { "docid": "13461069", "title": "", "text": "Vesich’s knowledge, the scope of our inquiry is limited. If the jury could legitimately infer beyond a reasonable doubt the existence of such knowledge from the evidence, we may not disturb the verdict. Odom at 998-99; United States v. Bullard, 458 F.2d 17, 18 (5th Cir.), cert. denied, 409 U.S. 916, 93 S.Ct. 247, 34 L.Ed.2d 178 (1972); United States v. Sink, 586 F.2d 1041, 1048-49 (5th Cir.1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979). It is not necessary that Vesich have known to a certainty that Fra-gale would appear before a grand jury. “The knowledge necessary is not absolute or direct knowledge ...; but information or a reasonably founded belief thereof is sufficient to make the requisite scienter; .... And nothing is more common in criminal cases than an inference of knowledge and motive from circumstances. If they can be logically inferred from what is proven whether they ought to be inferred and how certain the inference is, is for the jury and not for the judge.” Odom at 998-99. Accord, Bullard, 458 F.2d at 18; Sink at 1049; United States v. Arredondo-Morales, 624 F.2d 681, 684 (5th Cir.1980). Nor need Vesich have known every detail of the actual pending proceeding. Though we are again at the outer perimeters of the statute, we nevertheless hold it sufficient to meet the knowledge requirement of section 1503 that the jury could conclude beyond a reasonable doubt that Vesich correctly believed that Fragale would appear before a federal grand jury in New Orleans to testify on narcotics trafficking — possibly before an already empaneled grand jury, that Fra-gale expected this, and that federal prosecutors were already proceeding toward that end. Vesich conceded at trial that he was told in late December 1981, that the prosecution of Fragale was apparently being transferred to federal court. Fragale testified that Vesich told him in their January 5, 1982 meeting which was not taped, “How they was going to have me [Fragale] before the federal grand jury.” Furthermore, Vesich told Fragale in a January 4 recorded conversation that “[t]he feds definitely" }, { "docid": "18980033", "title": "", "text": "prejudiced by the loss of Ethington’s testimony. Similarly, and contrary to the argument of Davis, we find no prejudice resulted from the lack of Ethington’s testimony concerning Davis’ attempt to influence Dillard in violation of 18 U.S.C. § 1503. It is undisputed that Ethington was not present at the time Davis telephoned Dillard and later met with him. Davis argues, however, that Ethington would have established that Agent Foster had falsely stated to him that Dillard was “sitting on the fence” as far as who he was going to testify for. According to Agent Foster, this conversation took place one day after Davis contacted Dillard; Ethington’s testimony, according to Davis, would have established, however, that the date of the conversation was one day prior to the date Davis contacted Dillard. Davis contends that Agent Foster’s remarks about Dillard’s status as a witness led his attorney and himself to believe that Dillard was not yet a “witness,” so that contacting him as he did was not illegal. Davis misreads the law on this point. “A ‘witness’ under section 1503 is one who knows or is expected to know material facts and is expected to testify to them or to be called on to testify.” Berardi, 675 F.2d at 903 (emphasis added) (citing United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979), cert. dism’d, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980)). This Court has indicated that whether a person is a witness for § 1503 purposes must be determined by substance, not form. Chandler, supra, at 974. One may be a witness even if not yet under formal subpoena, Id.; Odom v. United States, 116 F.2d 996, 998 (5th Cir.1941), and whether or not the legal proceeding relevant to the “witness” status has even been commenced. Hunt v. United States, 400 F.2d 306, 307-08 (5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 566 (1969). The cases speak only of “witness” status depending, not on whether the witness himself expects to testify or expects to be called, but on whether the defendant knows or should" }, { "docid": "13461066", "title": "", "text": "(1957). In Chandler, we applied a “pragmatic definition of a section 1503 ‘witness’ in light of the protective purpose of the obstruction of justice statute ...,” id. at 975, and held that a person who has testified at trial remains a witness within the meaning of section 1503 after the trial has concluded but while the case is on direct appeal before a United States court of appeals. See also Hunt v. United States, 400 F.2d 306, 307-08 (5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 566 (1969) (holding that a person who had given information to the government, resulting in the filing of a complaint, and who was expected to testify in future legal proceedings, was a witness within the meaning of section 1503 during the period between the preliminary hearing and convening of a grand jury); Odom v. United States, supra (holding that an individual was a witness after he had testified in a federal court hearing and was expected to testify in another hearing on the same matter). We have adopted the rule, first stated in Odom, that an individual is a witness “[i]f he knows or is supposed to know material facts, and is expected to testify to them, or be called on to testify, ....’’ Odom v. United States, 116 F.2d at 998; Hunt at 307; Chandler at 974. In those instances in which we applied our pragmatic definition of “witness,” judicial proceedings had already occurred in federal court. However, we consistently emphasized the likelihood that the putative witness would testify in the future as the essential factor in evaluating an individual’s status as a witness. In this case, the jury could find that both Fragale, the witness, and Winters, the Assistant United States Attorney authorized to act in the matter, mutually expected and intended Fragale to testify before the federal grand jury, and Winters had selected and then intended to use a then empaneled grand jury for that purpose, all in accordance with the standard procedure of the United States Attorney’s office. Though these circumstances are perhaps at the outer" }, { "docid": "13461060", "title": "", "text": "of the statute, we have not had occasion to determine when a judicial proceeding is “pending” for purposes of the “due administration” clause of section 1503. However, we are guided by the decisions of our sister circuits on this issue, as well as by our prior application of the statute. In United States v. Walasek, 527 F.2d 676 (3d Cir.1975), the court held that a proceeding was pending after the United States Attorney’s office had assigned an investigation to a regularly sitting grand jury and a witness had been subpoenaed and called to testify. While declining “to articulate any necessary minimum set of circumstances,” the court found the evidence “sufficient to establish the ‘pendency’ of a judicial proceeding.” Id. at 678. The court stated: “Appellant would have us adopt a rigid rule that a grand jury proceeding is not ‘pending’ until a grand jury has actually heard testimony or has in some way taken a role in the decision to issue the subpoena. He offers no authority for such a rule, and we are not inclined to adopt it. Appellant is correct in his observation that a grand jury subpoena may become an instrumentality of an investigative agency, without meaningful judicial supervision. Nevertheless, the remedy against potential abuses is not to establish a rule, easily circumvented, by which some formal act of the grand jury will be required to establish ‘pendency.’ The remedy is rather to continue to inquire, in each case, whether the subpoena is issued in furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated presentation of evidence before the grand jury.” Id. (footnote omitted). In United States v. Simmons, 591 F.2d 206 (3d Cir.1979), the only evidence submitted on the question of pendency was that a grand jury had been constituted and empaneled and that subpoenas were then issued to appear before it. 591 F.2d at 208. Although in Simmons, no witness had appeared to testify before the grand jury at the time of the alleged obstruction of justice, the court declined to distinguish Wala-sek on that ground. The Simmons court considered it" }, { "docid": "13461070", "title": "", "text": "998-99. Accord, Bullard, 458 F.2d at 18; Sink at 1049; United States v. Arredondo-Morales, 624 F.2d 681, 684 (5th Cir.1980). Nor need Vesich have known every detail of the actual pending proceeding. Though we are again at the outer perimeters of the statute, we nevertheless hold it sufficient to meet the knowledge requirement of section 1503 that the jury could conclude beyond a reasonable doubt that Vesich correctly believed that Fragale would appear before a federal grand jury in New Orleans to testify on narcotics trafficking — possibly before an already empaneled grand jury, that Fra-gale expected this, and that federal prosecutors were already proceeding toward that end. Vesich conceded at trial that he was told in late December 1981, that the prosecution of Fragale was apparently being transferred to federal court. Fragale testified that Vesich told him in their January 5, 1982 meeting which was not taped, “How they was going to have me [Fragale] before the federal grand jury.” Furthermore, Vesich told Fragale in a January 4 recorded conversation that “[t]he feds definitely intend to do something; they’re going to do something about your case. John Lawrence [Fragale’s attorney] told me.” On January 6, Vesich told Fragale that “they wanted to get you over there because they wanted to get everything, you know, that the squad had told them that you were so big.” Al though Vesich told Fragale that Fragale would probably not be called to testify until after the pending criminal charges against him were disposed of, it could be inferred that Vesich, as an experienced attorney, was aware that those charges could be disposed of within a brief time by a variety of means. It could also be inferred that Vesich knew that a federal grand jury was virtually always sitting in New Orleans, and that Fragale could well be called to testify before one that had already been empaneled before January 5. And, there is certainly no suggestion to the contrary. Vesich’s uncertainty as to precisely when Fragale would be called to testify does not require his acquittal. The evidence affords ample support for" }, { "docid": "13461057", "title": "", "text": "GARWOOD, Circuit Judge: Anthony J. Vesich, Jr. appeals from a judgment of conviction for corruptly endeavoring to influence, obstruct and impede the due administration of justice (18 U.S.C. § 1503) and for perjury before a grand jury (18 U.S.C. § 1623). Following a jury trial, Vesich was sentenced to eighteen months’ imprisonment on the obstruction charge and eighteen months’ imprisonment, twelve of which were suspended, on the perjury charge. The obstruction charge was that on or about January 6,1982, Vesich advised, urged and attempted to persuade a potential grand jury witness, Robert Fragale, to testify falsely before the United States Grand Jury for the Eastern District of Louisiana. The perjury charge was that during an October 21,1982 grand jury appearance, Vesich falsely denied advising anyone to lie to a federal grand jury. Vesich’s motion for judgment of acquittal was denied by the trial judge. United States v. Vesich, 558 F.Supp. 1192 (E.D.La.1983). Vesich argues on appeal that the evidence was insufficient to establish that a judicial proceeding was “pending” as required to constitute a violation of the “due administration” clause of 18 U.S.C. § 1503 or that he knew of such a proceeding. Vesich also contends that his perjury conviction must be reversed for evidential insufficiency and other grounds. He finally argues that trial testimony referring to “case fixing” and the bribery of a state judge substantially prejudiced his defense and requires a new trial as to both counts. Rejecting these contentions, we affirm. OBSTRUCTION OF JUSTICE Section 1503 is designed to protect individuals involved in federal judicial proceedings, as well as to prevent “miscarriage[s] of Justice by corrupt methods.” Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). The language of section 1503 in effect in January 1982 was divisible into two parts. Its beginning and more specific language forbade corrupt endeavors to influence, intimidate or impede any witness, juror, or court official, while its concluding omnibus clause punished corrupt endeavors to influence, obstruct, or impede the “due administration of justice.” United States v. Howard, 569" }, { "docid": "9681035", "title": "", "text": "As discussed above, witness status is expressly not required under § 1512, which specifically refers to “persons” and not “witnesses.” . With respect to Bennett’s status as a witness for purposes of § 1503, appellant’s proposed definition of “witness” is too narrow. In Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev’d on other grounds, 313 U.S. 544, 61 S.Ct. 597, 85 L.Ed. 1511 (1941), the court held that a person was considered a witness “[i]f he [or she] knows or is supposed to know material facts, and is expected to testify to them, or be called on to testify.” A person’s status as a witness continues even when judicial proceedings have already occurred as long as there is a possibility that the person would testify or be called upon to testify in the future. For example, in United States v. Chandler, 604 F.2d at 975, the court applied a “pragmatic definition of a section 1503 ‘witness’ in light of the protective purpose of the obstruction of justice statute” and held that a person who had testified at trial remains a witness for purposes of § 1503 while the direct appeal is pending. Here, the grand jury had not concluded its investigation at the time appellant engaged in conduct prohibited by § 1503. Even though Bennett had asserted the fifth amendment privilege, he knew or was supposed to know material facts about the matters under investigation by the grand jury and could have been recalled to appear before the grand jury. Under these circumstances, we hold Bennett was a witness for purposes of § 1503. ADMISSIBILITY OF TAPE RECORDINGS Appellant next argues that the district court abused its discretion in admitting the May 19 and May 24 tape recordings into evidence because the government failed to meet the foundational requirements for introducing tape recordings. As discussed above, Greenfield made the May 19 tape recording using a friend’s tape recorder ánd without FBI assistance. The FBI made the May 24 tape recording using a body recording device worn by Greenfield. Appellant argues that the government did not establish the" }, { "docid": "13461065", "title": "", "text": "thirty days of the complaint, and did so on January 8, 1982. It was his office’s general policy to call cooperating witnesses who were under indictment to testify before the same grand jury that indicted them. Winters testified that, pursuant to his office’s normal practice when a witness is cooperating with a government investigation, he did not formally subpoena Fragale to testify. Without attempting to “articulate any necessary minimum set of circumstances,” we are persuaded that this evidence, if viewed in the light most favorable to the government, is sufficient, though perhaps minimally so, to establish the existence of a pending proceeding. Our conclusion is buttressed by our previous decisions requiring that the definition of “witness” under section 1503 be “determined with a view to substance, rather than form.” United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979), cert. denied, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980), quoting United States v. Grunewald, 233 F.2d 556, 571 (2d Cir.1956), rev’d on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In Chandler, we applied a “pragmatic definition of a section 1503 ‘witness’ in light of the protective purpose of the obstruction of justice statute ...,” id. at 975, and held that a person who has testified at trial remains a witness within the meaning of section 1503 after the trial has concluded but while the case is on direct appeal before a United States court of appeals. See also Hunt v. United States, 400 F.2d 306, 307-08 (5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 566 (1969) (holding that a person who had given information to the government, resulting in the filing of a complaint, and who was expected to testify in future legal proceedings, was a witness within the meaning of section 1503 during the period between the preliminary hearing and convening of a grand jury); Odom v. United States, supra (holding that an individual was a witness after he had testified in a federal court hearing and was expected to testify in another hearing on the same matter)." }, { "docid": "9681034", "title": "", "text": "appellant engaged in misleading conduct toward another grand jury witness, Cason. Both types of conduct fall within the terms of § 1512 and § 1503. The government also proved that there was a pending grand jury proceeding known to appellant and that appellant acted with the intent to obstruct the administration of justice. We also hold that appellant’s conviction under both § 1512 and § 1503 is not multiplicious in violation of the double jeopardy clause of the fifth amendment. See United States v. Wesley, 748 F.2d at 963—65. Proof of a violation of § 1503 requires proof of the defendant’s knowledge of a pending judicial proceeding, which is expressly not an element of a violation of § 1512. Appellant alternatively argues that Bennett was not a “witness” within the meaning of 18 U.S.C. § 1503 or 18 U.S.C. § 1512 because Bennett had already appeared before the grand jury and refused to testify and was unlikely to be recalled by the grand jury at the time appellant attempted to hire Greenfield to kill him. As discussed above, witness status is expressly not required under § 1512, which specifically refers to “persons” and not “witnesses.” . With respect to Bennett’s status as a witness for purposes of § 1503, appellant’s proposed definition of “witness” is too narrow. In Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev’d on other grounds, 313 U.S. 544, 61 S.Ct. 597, 85 L.Ed. 1511 (1941), the court held that a person was considered a witness “[i]f he [or she] knows or is supposed to know material facts, and is expected to testify to them, or be called on to testify.” A person’s status as a witness continues even when judicial proceedings have already occurred as long as there is a possibility that the person would testify or be called upon to testify in the future. For example, in United States v. Chandler, 604 F.2d at 975, the court applied a “pragmatic definition of a section 1503 ‘witness’ in light of the protective purpose of the obstruction of justice statute” and held that a" }, { "docid": "9681030", "title": "", "text": "456, 460 (1975) (fact that witness was discharged is immaterial to witness status for purposes of § 1503). In addition, § 1512 is expressly not limited to “pending” official proceedings, 18 U.S.C. § 1512(d)(1), or by considerations of admissibility, id. § 1512(d)(2), and thus “explicitly covers ‘po tential’ witnesses and those witnesses whose testimony might not be admissible at trial.” United States v. Hernandez, 730 F.2d at 898. By comparison, “[a] prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator. A grand jury investigation is such a proceeding.” United States v. Vesich, 724 F.2d 451, 454 (5th Cir.1984) (citations omitted). Moreover, § 1512 prohibits only specific types of conduct — intimidation, physical force, threats, or attempts to do so, misleading conduct, or harassment. 18 U.S.C. § 1512(a),(b); e.g., United States v. King, 762 F.2d at 238; United States v. Lester, 749 F.2d at 1293. In particular, § 1512 prohibits intimidation and harassment, thus “establishing a lower threshold of criminal activity [than § 1503].” United States v. Hernandez, 730 F.2d at 898; see S.Rep. No. 532 at 15, reprinted in 1982 U.S.Code Cong. & Ad.News at 2521 (expanded scope of prohibited conduct to include verbal harassment). As noted in United States v. Lester, 749 F.2d at 1293-94 (citations and footnote omitted), [t]he omnibus clause of section 1503, by contrast, is broader. It reaches conduct that “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice.” In decisions prior to the enactment of section 1512, ... the argument that the omnibus provision covers only activities obstructing justice that involve force, threats, or intimidation [was consistently rejected]. [Section 1503] includes noncoercive witness tampering. Cf. United States v. King, 762 F.2d at 238 (§ 1512 does not apply to nonmisleading, nonthreatening, nonintimidating attempt to have person give false information to the government, but may violate § 1503 if there was a pending judicial proceeding at the time); United States v. Vesich, 724 F.2d at 454 (noncoercive witness tampering falls precisely within § 1503 when witness prevented from testifying in federal prosecution)." }, { "docid": "13461059", "title": "", "text": "F.2d 1331, 1333 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). A prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator. Pettibone v. United States, 148 U.S. 197, 205-07, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893); Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev’d on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941); Howard at 1337. A grand jury investigation is such a proceeding. Howard, supra. Vesich argues that no grand jury proceeding was pending at the time of the alleged obstruction of justice, because the evidence established only the possibility of such a proceeding. The trial judge instructed the jury that a pending judicial proceeding is one that has been “initiated but not yet settled or decided.” See United States v. Koehler, 544 F.2d 1326, 1328 n. 3 (5th Cir.1977). Vesich did not object to that instruction and does not do so on appeal. While pendency is clearly a requirement of the statute, we have not had occasion to determine when a judicial proceeding is “pending” for purposes of the “due administration” clause of section 1503. However, we are guided by the decisions of our sister circuits on this issue, as well as by our prior application of the statute. In United States v. Walasek, 527 F.2d 676 (3d Cir.1975), the court held that a proceeding was pending after the United States Attorney’s office had assigned an investigation to a regularly sitting grand jury and a witness had been subpoenaed and called to testify. While declining “to articulate any necessary minimum set of circumstances,” the court found the evidence “sufficient to establish the ‘pendency’ of a judicial proceeding.” Id. at 678. The court stated: “Appellant would have us adopt a rigid rule that a grand jury proceeding is not ‘pending’ until a grand jury has actually heard testimony or has in some way taken a role in the decision to issue the subpoena. He offers no authority for such a rule, and we are not" }, { "docid": "13461090", "title": "", "text": "testify until September 1982 before a grand jury empaneled in June 1982. According to Winters’ testimony, the delay was because a government undercover investigation in which Fragale was participating continued longer than was expected during January 1982. . After noting the accused’s knowledge of a pending proceeding, the Odom panel found it sufficient that the accused knew the proceeding would “probably” involve testimony from the prospective witness. United States v. Baker, 494 F.2d 1262 (6th Cir.1974), rejected the argument that Odom stands for the proposition “that a reasonably founded belief by the accused that the person he attempts to influence is a witness in a pending federal proceeding furnishes the requisite scienter for a violation of 18 U.S.C. § 1503.” Id. at 1265. In Baker, the evidence did not demonstrate that the alleged threat to a section 1503 witness related to the witness’ pending testimony in a federal proceeding. The court noted that the defendant had other reasons for making the threat, and may have not even known of the existence of any federal investigation involving the witness. Odom was thus factually distinguishable. Baker at 1265. Here, the jury could legitimately conclude that Vesich’s urgings were directed to Fragale’s expected federal grand jury testimony. . “They” apparently referred to the United States Attorney’s office. . Vesich had practiced law in New Orleans for thirty-two years at the time of trial. His practice had included representation of criminal defendants in both state and federal courts there. He had also served in the Louisiana Legislature for sixteen years. The evidence, including Ve-sich’s testimony, reflected that he had a detailed and practical working knowledge of and experience with the operations of the criminal justice system, including state and federal grand juries and pretrial criminal procedures, plea bargaining and investigations. . For instance, a plea bargaining agreement, an outright dismissal, or a trial on the merits. . The allegedly perjured testimony was as follows: “Q. Did you ever advise or suggest to anyone that he or she should lie before a federal grand jury if you felt the government could not prove a perjury" }, { "docid": "13461067", "title": "", "text": "We have adopted the rule, first stated in Odom, that an individual is a witness “[i]f he knows or is supposed to know material facts, and is expected to testify to them, or be called on to testify, ....’’ Odom v. United States, 116 F.2d at 998; Hunt at 307; Chandler at 974. In those instances in which we applied our pragmatic definition of “witness,” judicial proceedings had already occurred in federal court. However, we consistently emphasized the likelihood that the putative witness would testify in the future as the essential factor in evaluating an individual’s status as a witness. In this case, the jury could find that both Fragale, the witness, and Winters, the Assistant United States Attorney authorized to act in the matter, mutually expected and intended Fragale to testify before the federal grand jury, and Winters had selected and then intended to use a then empaneled grand jury for that purpose, all in accordance with the standard procedure of the United States Attorney’s office. Though these circumstances are perhaps at the outer edge of the required pendency, nevertheless we are of the view that they are not beyond it. To hold them insufficient to trigger application of section 1503 would require a departure from precedent which we are unwilling to make. Vesich also argues that, even if a pending judicial proceeding existed in this case, his conviction cannot stand because he was not aware of it. Knowledge and intent are necessary ingredients of an offense under section 1503. United States v. Haas, 583 F.2d 216, 220 (5th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). To find a violation of the statute, there must not only be a pending judicial proceeding, but the accused must have knowledge or notice of that fact. Pettibone v. United States, 148 U.S. at 205-07, 13 S.Ct. at 546; Odom at 998. Vesich asserts that he had no knowledge of the existence of any pending grand jury proceeding involving Fragale, much less the particular one alleged by the government to have existed. In evaluating the evidence respecting" }, { "docid": "18980034", "title": "", "text": "under section 1503 is one who knows or is expected to know material facts and is expected to testify to them or to be called on to testify.” Berardi, 675 F.2d at 903 (emphasis added) (citing United States v. Chandler, 604 F.2d 972, 974 (5th Cir.1979), cert. dism’d, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980)). This Court has indicated that whether a person is a witness for § 1503 purposes must be determined by substance, not form. Chandler, supra, at 974. One may be a witness even if not yet under formal subpoena, Id.; Odom v. United States, 116 F.2d 996, 998 (5th Cir.1941), and whether or not the legal proceeding relevant to the “witness” status has even been commenced. Hunt v. United States, 400 F.2d 306, 307-08 (5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 566 (1969). The cases speak only of “witness” status depending, not on whether the witness himself expects to testify or expects to be called, but on whether the defendant knows or should expect that the witness will be called on to testify. Berardi, 675 F.2d at 903 n. 18; Chandler, 604 F.2d at 975 n. 6; Hunt, 400 F.2d at 307-08. Regardless of the timing of Foster’s remarks, Davis knew or should have known that Dillard was a potential witness in the case. His contacting Dillard to discuss their testimony demonstrates this. Therefore, any attempt by Davis to attempt to coerce Dillard or otherwise influence his testimony constituted a violation of § 1503. His actual status as a government witness with immunity from prosecution is irrelevant. Moreover, the substance of the absent testimony of which Davis complains as to both obstruction of justice counts could have been brought forth by Davis at the time he took the witness stand; no effort was made, however, to elicit testimony from Davis while he was on the witness stand bearing on the obstruction counts. Accordingly, we believe that no substantial prejudice resulted from the lack of Ethington’s testimony on the obstruction of justice count alleging an attempt to influence a" }, { "docid": "13461058", "title": "", "text": "of the “due administration” clause of 18 U.S.C. § 1503 or that he knew of such a proceeding. Vesich also contends that his perjury conviction must be reversed for evidential insufficiency and other grounds. He finally argues that trial testimony referring to “case fixing” and the bribery of a state judge substantially prejudiced his defense and requires a new trial as to both counts. Rejecting these contentions, we affirm. OBSTRUCTION OF JUSTICE Section 1503 is designed to protect individuals involved in federal judicial proceedings, as well as to prevent “miscarriage[s] of Justice by corrupt methods.” Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). The language of section 1503 in effect in January 1982 was divisible into two parts. Its beginning and more specific language forbade corrupt endeavors to influence, intimidate or impede any witness, juror, or court official, while its concluding omnibus clause punished corrupt endeavors to influence, obstruct, or impede the “due administration of justice.” United States v. Howard, 569 F.2d 1331, 1333 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). A prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator. Pettibone v. United States, 148 U.S. 197, 205-07, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893); Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev’d on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941); Howard at 1337. A grand jury investigation is such a proceeding. Howard, supra. Vesich argues that no grand jury proceeding was pending at the time of the alleged obstruction of justice, because the evidence established only the possibility of such a proceeding. The trial judge instructed the jury that a pending judicial proceeding is one that has been “initiated but not yet settled or decided.” See United States v. Koehler, 544 F.2d 1326, 1328 n. 3 (5th Cir.1977). Vesich did not object to that instruction and does not do so on appeal. While pendency is clearly a requirement" } ]

[ { "docid": "926627", "title": "", "text": "52 L.Ed.2d 365 (1977); United States v. Mikka, 586 F.2d 152 (9th Cir. 1978). Contra to appellant’s allegations, a reading of the record does not reflect that the prosecutor in his closing argument misstated the evidence in any significant respect. Under these circumstances and absent objection the prosecutor’s statement does not constitute plain error and does not mandate reversal. Parker, supra; United States v. Mouton, 617 F.2d 1379 (9th Cir. 1980); United States v. Berry, 627 F.2d 193 (9th Cir. 1980). Even if any of the prosecution’s comments are considered as slightly improper, it cannot be concluded that it was more probable than not that any errors in this argument affected the verdict. Such would be required for reversal. United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977); Berry, supra, Mouton, supra. Ill STATEMENT OF WITNESS CARTER OF HER IMPRESSION AND UNDERSTANDING AS TO HER CONVERSATION WITH APPELLANT. Witness Jeanette Carter testified in response to the Government’s question that appellant told her: “A: He never actually said that, you know, he had blown it up but it was my understanding, or by his mentioning that he had a friend and that when he showed me the article that it was my impression when we were done talking that he was involved in having it blown up.” Carter’s testimony as to her impression of what the appellant meant by his statements and contemporaneous conduct goes beyond the literal meaning of appellant’s words and actions themselves. Lay witnesses are normally not permitted to testify about their subjective interpretations or conclusions as to what has been said. See, United States v. Marzano, 537 F.2d 257, cert. den’d. 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (3rd Cir. 1976), DeLoach v. United States, 307 F.2d 653 (D.C. Cir. 1962); contra United States v. Brooks, 473 F.2d 817 (9th Cir. 1973). Under Rule 701 of the Federal Rules of Evidence, some lay expressions of opinion or inference may be permitted but only if rationally based on perception of a witness and helpful either to an understanding of the testimony of the witness" } ]

[ { "docid": "22799323", "title": "", "text": "by permitting lay opinion testimony pursuant to Fed.R.Evid. 701 could Kramer’s credibility be evaluated properly. Relying on our holding in United States v. Dicker, 853 F.2d 1103, 1109 (3d Cir.1988), the district court held that the witnesses’ interpretation of what they thought Kramer meant was inadmissible because his statements, as recounted to the jury, were clear. In United States v. De Peri, 778 F.2d 963, 977-98 (3d Cir.1985), we held that a police officer’s explanations of cryptic remarks made in tape recorded conversations between drug traffickers were admissible under Fed. R.Evid. 701 because they rationally were based on his perception of the conversation and helpful to the trier of fact. In Dicker, however, we explained that De Peri did not authorize the admission of all opinion testimony regarding the substance of a recorded or recalled conversation. Rather, such testimony is admissible only to assist in the jury’s interpretation of coded portions of the conversation. 853 F.2d at 1109. But we held that where the statements are clear, such opinion testimony is not helpful to the trier of fact and is inadmissible under both Rules 701 and 702. Thus, under the facts of that case, we found that a customs agent should not have been allowed to interpret a defendant’s potentially legitimate reference to export certificates as “phony documents” when the reference was clear and straightforward. Similarly, in this case, regardless of what Kramer intended by his comments to the three witnesses, the comments, as recounted by those witnesses, were in themselves clear and straightforward, and thus we cannot say that the district court erred in holding that they did not need clarification by way of the witnesses’ interpretations. The testimony of the witnesses accurately conveyed to the jury Kramer’s words, which strongly suggested Kramer’s intent to influence them and which further suggested Kramer’s lack of confidence in Lightning Lube’s case. Thus, even without the witnesses’ lay opinion as to Kramer’s intent, the jury was very likely to draw inferences from the witnesses’ testimony against Lightning Lube. In addition, the court’s special instruction to the jury advising it that any such" }, { "docid": "13414802", "title": "", "text": "Aiello should not be heard to complain, however, because at trial he initially objected to the use of a special interrogatory on these issues. Although he later changed his position, the jury had been deliberating for four hours. The district court did not abuse its discretion in ruling that this request came “too late.” 2. Aiello’s Other Contentions Aiello contends that the district court erred in instructing the jury that for the CCE series it could rely on violations not charged in the indictment. However, “an indictment charging a violation of § 848 need not ‘specify each violation constituting the continuing series of viola-tions. . . .\"Young, 745 F.2d at 747 (quoting United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975)). Hence, the government need not specifically plead, let alone obtain convictions on, any of the predicate offenses; it simply must prove at trial a continuing series of at least three felony offenses. Id. Detective Ford’s testimony regarding the meaning of one of Giusto’s statements made during their November 7,1984 meeting properly was admitted. Aiello is correct that there was no attempt in this case to qualify Ford as an expert witness. But the testimony was admissible as an opinion by a lay witness under Fed.R.Evid. 701 because the “language on the tape[ ] is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to [the conversants],” United States v. De Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). Moreover, the district court here “vigorously policed the government’s examination,” id. at 978, preventing Ford from telling the jury about whom he thought Giusto was speaking of when Giusto mentioned “Tony” at numerous points in the conversation. Finally, Aiello’s argument that his sentences are “grossly disproportionate” to the crimes also must be rejected. A sentence imposed by a district court is entitled to “substantial deference,” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d" }, { "docid": "22839143", "title": "", "text": "because the conversations which the witness was permitted to interpret were clear. We held that therefore it was improper for the agent to “ascribe[ ] his own illicit meaning to straightforward, potentially legitimate statements.” Id. at 1110. There is undoubtedly some risk that permitting an expert to testify concerning a defendant’s role in a drug operation may, as Judge Friendly noted in a similar case, be overly persuasive to the jury because of the “aura of special reliability and trustworthiness” surrounding expert testimony. See Brown, 776 F.2d at 401 & n. 6 (citing United States v. Young, 745 F.2d 733, 765-66 (2d Cir.1984) (Newman, J., concurring), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985)). Nonetheless, even in Brown the court held that it was not error to admit the officer’s conclusion as to defendant’s role in the organization. Of course, such testimony should not be routinely admitted. The dispositive question in each such case is whether the testimony will be helpful to the jury or unduly prejudicial under Rule 403. In dealing with organized crime or illegal narcotics operations, a lay jury is unlikely to have knowledge as to the structure of the organization or the interrelationships between the participants. We have previously held admissible testimony as to the structure of organized crime families and explanations of Italian words such as capi and consigliere in the context of an organized crime family. United States v. Riccobene, 709 F.2d 214, 230-31 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). Here, the structure of the Theodoropoulos organization was complex, and there was confusion in the conversations between the participants created by their use of different codes, two languages, and truncated sentences. We have permitted even lay testimony of a witness’ understanding of a tape recorded conversation when the language was “abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that [were] clear only to [defendant] and [the witness.]” United States v. De-Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916" }, { "docid": "21050038", "title": "", "text": "S.Ct. 795, 102 L.Ed.2d 787 (1989); Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921-22 (3d Cir.1986); Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir.1963) (“It is well settled that the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge and his action thereon is not reviewable upon appeal, save in the most exceptional cases”). Particular deference is appropriate in the present case because the decision to grant a new trial rested on an evidentiary ruling that was itself entrusted to the trial court’s discretion. Indeed, a trial judge’s decision to admit or exclude evidence under Fed.R.Evid. 403 may not be reversed unless it is “arbitrary and irrational.” United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986); United States v. Friedland, 660 F.2d 919, 929 (3d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982); United States v. Long, 574 F.2d 761, 767 (3d Cir.) (“If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal”), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). Applying these deferential standards of review, we sustain the trial judge’s decision to grant a new trial in this case. The trial court’s conclusion that the testimony at issue should have been excluded under Fed.R.Evid. 403 was unquestionably neither arbitrary nor irrational but reflected an appropriate assessment and weighing of the prescribed considerations. Relevant evidence may be excluded under Rule 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jurors.” Here, the trial judge had solid grounds for concluding that the out-of-court statements at issue had little if any relevance or probative value and that they created a substantial danger of “unfair prejudice,” “confusion of the issues,” and “misleading" }, { "docid": "23245474", "title": "", "text": "authenticity not required to admit disputed evidence); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988) (once minimally authenticated, issue becomes weight of evidence, not admissibility). The district court did not abuse its discretion in admitting this. tape. Garza next argues that these co-conspirators should not have been allowed to explain the secret meanings of the conversations both because they are not experts and because the meaning was already clear. Fed.R.Evid. 701 allows lay witnesses to testify about conversations consisting of “unfinished sentences and punctuated with ambiguous references to events that are clear only to [the participants].” United States v. De Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). The district court may admit such opinions if they are (a) rationally based on first hand knowledge and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. United States v. Garcia, 994 F.2d 1499, 1506-07 (10th Cir.1993) (agent who tapped phone conversation between conspirators could testify about hidden meanings); United States v. Simas, 937 F.2d 459, 462 (9th Cir.1991). In Garza’s case, the witnesses met these criteria. By listening to the tapes, the conspirators gained first hand knowledge of these conversations, which were admissible as eo-eonspir-ator statements in furtherance of the conspiracy. Garcia, 994 F.2d at 1507 (in-eourt perception of admissible out of court statements constitutes first hand knowledge). Their opinions had a rational connection to this factual basis because they were members of the conspiracy and familiar with the events being discussed. The district court ensured this rational connection by repeatedly instructing the witnesses to testify only to what they actually knew, thus preventing speculation and inference. The co-conspirators’ testimony was also helpful to the jury because, contrary to Garza’s assertion, these tapes did not always speak for themselves. Hoping to disguise the topic of discussion, the conspirators peppered their discourse with code phrases and oblique references. The witnesses’ testimony on the true meaning of these phrases was helpful, if not essential, to the jury’s understanding of this evidence." }, { "docid": "22839144", "title": "", "text": "dealing with organized crime or illegal narcotics operations, a lay jury is unlikely to have knowledge as to the structure of the organization or the interrelationships between the participants. We have previously held admissible testimony as to the structure of organized crime families and explanations of Italian words such as capi and consigliere in the context of an organized crime family. United States v. Riccobene, 709 F.2d 214, 230-31 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). Here, the structure of the Theodoropoulos organization was complex, and there was confusion in the conversations between the participants created by their use of different codes, two languages, and truncated sentences. We have permitted even lay testimony of a witness’ understanding of a tape recorded conversation when the language was “abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that [were] clear only to [defendant] and [the witness.]” United States v. De-Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). The district court in its discretion could reasonably have decided that Eberhart’s testimony as to defendants’ roles in the organization could have assisted the jury in making sense of otherwise incoherent phone conversations. Accord United States v. Angiulo, 847 F.2d 956, 974-75 & n. 23, (1st Cir.), cert. denied, — U.S. -, 109 S.Ct. 138, 102 L.Ed.2d 110 (1988) (not an abuse of discretion for the trial judge to admit expert testimony concerning defendants’ roles in organized crime family). In this case, the trial judge carefully instructed the jury that they were free to credit as much or as little of agent Eber-hart’s testimony as they saw proper. There is no evidence that Eberhart was explaining what were clear statements. On the contrary, because the code words are interwoven throughout the conversations, often in confusing contexts (for example, the reference to four “blue” steaks in a conversation between Theodoropoulos and Karivalis, App. at 1770) Eberhart’s testimony was helpful in setting the stage for an understanding of the nature of Theodo-ropoulos’ enterprise. Finally, we cannot" }, { "docid": "23328108", "title": "", "text": "the district court erred by admitting lay opinion testimony from FBI agents concerning their understanding of what Simas meant to convey by his vague and ambiguous statements during the course of the alleged crimes. Simas argues this testimony was inadmissible under Federal Rule of Evidence 701 and, in the alternative, its unfair prejudicial effect outweighed any probative value. See Fed.R.Evid. 403. The admission of lay opinion testimony is “within the broad discretion of the trial judge [and] not to be disturbed unless it is manifestly erroneous.” United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). Except for one instance, Simas’ trial counsel failed to object to the testimony which his appellate counsel now challenges. Therefore, except for the single objection made at the time of trial, we review for plain error. United States v. Smith, 790 F.2d 789, 793 (9th Cir.1986). For lay opinion testimony to be admissible, the opinion must be (1) “rationally based on the perception of the witness” and (2) must be helpful to the jury in acquiring a “clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701. Each FBI agent testified about statements made to that agent. This was sufficient to satisfy the first requirement of Rule 701. See 3 D. Louisell, C. Mueller, Federal Evidence § 376, at 618 (1979) (stat ing first requirement is simply a restatement of the personal knowledge requirement necessary for all lay witness testimony). As to the second requirement, a lay witness’ opinion concerning the witness’ understanding of the declarant’s statements or conduct may be helpful to the jury. See Burnette, 698 F.2d at 1051 (officer’s opinion that defendant was removing license plates from car), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir.1985) (witness testifies to understanding of defendant’s ambiguous references and unfinished sentences), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). In addition, we previously have allowed law enforcement officers" }, { "docid": "23693418", "title": "", "text": "[were] clear only to the [defendant] and [the witness].’ ” United States v. Theodoropoulos, 866 F.2d 587, 592 (3d Cir.1989) (quoting United States v. De Pen, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and cert. denied, 476 U.S. 1159,106 S.Ct. 2277, 90 L.Ed.2d 720 (1986)). Here, the district court reasonably recognized that the lay jury in this case would likely be unfamiliar with the complexities of high finance and the intricate world of money laundering. For this reason, the district court allowed Agent Mazur to explain terms such as “haven countries,” R82:25-27, and “shell corporations.” R86:24-30. The district court also reasonably recognized the helpfulness to the jury of allowing Agent Mazur, “who was actually present and participating in the conversation and observing what was happening at the time in terms of gestures and the like of those who are speaking,” R88:48, to explain phrases regarding international transactions involving correspondent banks, numbered accounts, time deposits using collateralized loans, and how drug traffickers shield themselves from law enforcement. See, e.g., R85:20-34; R87:68-72. All of these matters were central to the facts at issue and well within the ambit of Rule 701. Turning to the examples cited by the appellants above, we cannot say that it was reversible error for the district court to admit Agent Mazur’s comments. In Davis, 787 F.2d at 1505, the district court admitted lay opinion testimony from two government witnesses as to the meaning of comments made by defendants who had been charged with drug trafficking. When the first government witness was asked what the phrase “you don’t have to worry about” [the name of a certain defendant] meant, he responded that he thought that the named defendant must have known about the “dope business.” Id. When the second government witness was asked what the phrase “wanted to make a trip” meant, he responded that he thought the defendant who uttered the phrase was referring to an “illegal act.” Id. Although strongly cautioning that “the better practice might have been for the trial court to disallow [such] opinion" }, { "docid": "23693417", "title": "", "text": "that he was permitted, over objection, to offer subjective views about what straightforward comments in the tape-recorded conversations meant and why he and the defendants had uttered them. These explanations were especially prejudicial, they claim, in light of no other evidence establishing criminal intent. Thus, they conclude, the district court’s admission of Agent Mazur’s testimony constitutes reversible error under Rule 701 because it did not assist the jurors in reaching their own decisions about the meaning and import of those statements. We conclude otherwise. Rule 701 allows “lay opinion testimony if the opinion is ‘rationally based on the perception of the witness and [is] helpful to a clear understanding of his testimony or the determination of a fact in issue.’ ” Davis, 787 F.2d at 1505 (quoting Fed.R.Evid. 701). Where a witness’ testimony is based upon his “perceptions of the conversations ... the accuracy of those perceptions [is] a question for the jury.” Id. A witness may clarify conversations that are “ ‘abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that [were] clear only to the [defendant] and [the witness].’ ” United States v. Theodoropoulos, 866 F.2d 587, 592 (3d Cir.1989) (quoting United States v. De Pen, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and cert. denied, 476 U.S. 1159,106 S.Ct. 2277, 90 L.Ed.2d 720 (1986)). Here, the district court reasonably recognized that the lay jury in this case would likely be unfamiliar with the complexities of high finance and the intricate world of money laundering. For this reason, the district court allowed Agent Mazur to explain terms such as “haven countries,” R82:25-27, and “shell corporations.” R86:24-30. The district court also reasonably recognized the helpfulness to the jury of allowing Agent Mazur, “who was actually present and participating in the conversation and observing what was happening at the time in terms of gestures and the like of those who are speaking,” R88:48, to explain phrases regarding international transactions involving correspondent banks, numbered accounts, time deposits using collateralized loans, and how drug traffickers shield themselves from law" }, { "docid": "8009481", "title": "", "text": "it. United States v. Dalzotto, 603 F.2d 642, 644 (7th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979). . The defendants concede that the government need not prove that the defendants knew that a federal judicial proceeding was involved, but must prove only that the defendants knew of some judicial proceeding. United States v. Ardito, 782 F.2d 358, 360-62 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 2281, 90 L.Ed.2d 723 (1986). That concession makes little difference because the evidence in this case concerns only the federal Accardo trial. . The defendants have not claimed that the jury was not properly instructed on that issue to help it consider the evidence. . Defendants explain that no offers of proof were made because there had been a previous trial which had resulted in a mistrial. Defendants say they relied upon the former partial trial since the trial judge was already familiar with the evidence and its purpose. . Fed.R.Evid. 701 provides: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. . To support its argument, the government cites United States v. Ness, 665 F.2d 248, 249-50 (8th Cir.1981) (bank employees precluded from offering opinions on whether coworker intended to defraud the bank); United States v. Cox, 633 F.2d 871, 875-76 (9th Cir.1980), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981) (error to allow witness to offer impressions regarding what the accused meant by accused’s statements and contemporaneous conduct); United States v. Jackson, 569 F.2d 1003, 1011 n. 17 (7th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978) (district court properly refused to permit wife to give reasons for husband’s depression)." }, { "docid": "23245473", "title": "", "text": "n. 27 (5th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988). 2. Did the district court err by allowing non-expert witnesses to testify as to certain tape recordings? Garza maintains that the court erred by allowing three members of the conspiracy, Angel Berndt Garcia, Jesus Flores and Daniel Bordayo, to testify about the parties to and meanings of tape recorded conversations between other conspirators. Garza first complains that the district court allowed Berndt Garcia to testify about several conversations even though he could only identify one of the speakers. Garza’s characterization is not quite accurate. While Berndt Garcia could only identify one of the speakers (Garza) with absolute certainty, he did identify the other speaker, although with less certainty. In such cases, the district court is given broad discretion to admit the tape and let the jury decide what value to place on the identification. United States v. Singh, 922 F.2d 1169, 1174 (5th Cir.), cert. denied, 500 U.S. 938, 111 S.Ct. 2066, 114 L.Ed.2d 471 (1991) (conclusive proof of authenticity not required to admit disputed evidence); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988) (once minimally authenticated, issue becomes weight of evidence, not admissibility). The district court did not abuse its discretion in admitting this. tape. Garza next argues that these co-conspirators should not have been allowed to explain the secret meanings of the conversations both because they are not experts and because the meaning was already clear. Fed.R.Evid. 701 allows lay witnesses to testify about conversations consisting of “unfinished sentences and punctuated with ambiguous references to events that are clear only to [the participants].” United States v. De Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). The district court may admit such opinions if they are (a) rationally based on first hand knowledge and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. United States v. Garcia, 994 F.2d 1499, 1506-07 (10th Cir.1993) (agent who tapped phone conversation between conspirators could" }, { "docid": "51632", "title": "", "text": "F.2d 871, 875 (9th Cir.1980), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981)). In De Peri, the district court allowed the Government’s chief witness, Joseph Alvaro (“Alvaro”) to testify as to his understanding of tape recorded conversations between him and defendant James Martin (“Martin”). Id. According to the Circuit, allowing such testimony was not an abuse of discretion. Id. at 977-78. The Circuit explained: Martin’s language on the tapes is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to Martin and his audience. To the uninitiated listener, Martin speaks as if he were using code. Alvaro’s opinions are based upon his direct perception of the event, are not speculative, and are helpful to the determination of Martin’s involvement in the protection scheme and the subsequent attempt to silence [Government Witness Albert] Ricci with “hush money.” Id. at 977-78. Additionally, the Circuit reasoned that “the trial court vigorously policed the Government’s examination of Alvaro to ensure that he was not asked to interpret relatively clear statements.” Id. at 978. In United States v. Dicker, 853 F.2d 1103, 1110-11 (3d Cir.1988), the Circuit reversed a conviction because a witness was permitted to interpret clear statements in recorded conversations. The Circuit explained: ‘While the trial judge was certainly correct in his assertion that interpretation of code words by a witness is permissible, the interpretation of clear statements is not permissible, and is barred by the helpfulness requirement of both [FRE] 701 and [FRE] 702.” Id. at 1109 (emphasis in original) (footnote omitted). The Circuit distinguished Dicker, in the context of interpreting recorded conversations by an expert, in United States v. Theodoropoulos, 866 F.2d 587, 591-92 (3d Cir.1989). The Circuit stated: “Dicker did not deal with ascribing roles to members of an illegal narcotics conspiracy.” The Circuit further distinguished Dicker because “the witness’ interpretations of what he said and what the defendant said did not meet the helpfulness standard for lay opinions under Rule 701.” Id. at 591. According to the Circuit: “Dicker is inapposite [to Theodoropoulos ] because the" }, { "docid": "23328109", "title": "", "text": "(2) must be helpful to the jury in acquiring a “clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701. Each FBI agent testified about statements made to that agent. This was sufficient to satisfy the first requirement of Rule 701. See 3 D. Louisell, C. Mueller, Federal Evidence § 376, at 618 (1979) (stat ing first requirement is simply a restatement of the personal knowledge requirement necessary for all lay witness testimony). As to the second requirement, a lay witness’ opinion concerning the witness’ understanding of the declarant’s statements or conduct may be helpful to the jury. See Burnette, 698 F.2d at 1051 (officer’s opinion that defendant was removing license plates from car), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir.1985) (witness testifies to understanding of defendant’s ambiguous references and unfinished sentences), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). In addition, we previously have allowed law enforcement officers to give their opinion that the defendant’s activities match “the usual criminal modus operandi.” United States v. Espinosa, 827 F.2d 604, 611-13 (9th Cir.1987) (detective testifies transaction involving defendant appeared to be a drug transaction), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); see also Fleishman, 684 F.2d at 1335 (DEA agent testifies defendant acted as lookout for narcotic transaction). Simas’ statements to the FBI agents were vague and, at times, seemingly incomprehensible. The listener’s understanding of the words and innuendo was helpful to the jury in determining what Simas meant to convey. The probative value of the opinion testimony was strong and outweighed any unfair prejudicial effect. The district court did not abuse its discretion by admitting the testimony to which Simas objected at trial, nor did the court commit plain error in admitting the testimony to which Simas objects for the first time on appeal. G. Hearsay Finally, Simas contends the district court erred by excluding as hearsay FBI Agent Drew Empey’s proffered testimony that Arnold Flores told Empey," }, { "docid": "2304552", "title": "", "text": "only to assist in the jury’s interpretation of coded portions of the conversation. 853 F.2d at 1109. Where the statements are clear, such opinion testimony is not helpful to the trier of fact and is inadmissible under both Rules 701 and 702. Id. In this case, the loansharking terms explained by Jones fall squarely within the province of “coded” language beyond the comprehension of the average juror, and his opinion testimony was confined to portions of the tape containing those terms. Thus, the helpfulness requirement of both Rules 701 and 702 was met. The proper provision for admission of Jones’s testimony is Rule 702 because Jones lacked personal knowledge of the meaning which the parties to the wiretapped conversations attached to their re marks. In both De Peri and Dicker, which were decided under Rule 701, the testifying witness was a party to the conversation. Where the witness’s interpretation of the conversation is based solely on his “specialized knowledge,” the testimony is admissible under Rule 702 if the witness is qualified as an expert. See United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987) (DEA agent was qualified to interpret codes and jargon used by drug traffickers); United States v. Nersesian, 824 F.2d 1294, 1308 (2nd Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); United States v. Riccobene, 709 F.2d at 230 (FBI agent qualified to define terms such as “La Cosa Nostra,” “eapi,” and “consigliere” in organized crime context). Given that Jones’s opinion testimony was admissible for the limited purpose of defining the loansharking terms used by appellants, the sole remaining question is whether the district court abused its discretion in recognizing Jones as an expert. As stated in Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962), “the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous.” Jones’s qualifications were more than adequate to qualify him as an expert. He testified that he currently was" }, { "docid": "51631", "title": "", "text": "to Explanations of Taped References During the Government’s direct examination of Sabol, audio and video tapes of recorded conversations were played. At certain points, the Government stopped the tape being played to ask Sabol questions about the recorded conversations. Sabol testified as to his understanding of various recorded remarks made by Defendants, during conversations which he was a participant, or as to what Sabol meant by a particular recorded remark he made. Counsel for the Defendants, on numerous occasions, objected to such inquiries. Except as indicated below, these objections were overruled. The Third Circuit has explained: Under [FRE] 701, lay witnesses may state their understanding of the use of another person’s statements “only if rationally based on the perception of a witness and helpful either to an understanding of the testimony of the witness on the stand or to the determination of a fact in issue.” United States v. De Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986) (quoting United States v. Cox, 633 F.2d 871, 875 (9th Cir.1980), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981)). In De Peri, the district court allowed the Government’s chief witness, Joseph Alvaro (“Alvaro”) to testify as to his understanding of tape recorded conversations between him and defendant James Martin (“Martin”). Id. According to the Circuit, allowing such testimony was not an abuse of discretion. Id. at 977-78. The Circuit explained: Martin’s language on the tapes is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to Martin and his audience. To the uninitiated listener, Martin speaks as if he were using code. Alvaro’s opinions are based upon his direct perception of the event, are not speculative, and are helpful to the determination of Martin’s involvement in the protection scheme and the subsequent attempt to silence [Government Witness Albert] Ricci with “hush money.” Id. at 977-78. Additionally, the Circuit reasoned that “the trial court vigorously policed the Government’s examination of Alvaro to ensure that he was not asked to" }, { "docid": "23116307", "title": "", "text": "Cir.1983) (prior existence of motive to fabricate does not render the prior consistent statement inadmissible). We find it unnecessary to enter this debate here, as Martin fails to support his assertion with any evidence. The record, fairly read, indicates that Ricci addressed Alvaro as his former commanding officer, a coconspirator, and had no idea that the conversation would be of any value to him in the future. That Ricci’s recorded statements are inculpatory, not exculpatory, evidences a lack of guile that supports the interpretation that the conversation occurred before Ricci decided to talk to the prosecutors. See United States v. Rohrer, 708 F.2d 429, 433 (9th Cir.1983). In sum, we cannot discern a motive to falsify arising prior to the conversation, and therefore find no error in the court’s admission of the tape. Alvaro’s Interpretation of Martin’s Recorded Statements Martin argues that the trial court abused its discretion in allowing Alvaro to testify as to his understanding of tape recorded conversations between Alvaro and Martin. Under Federal Rule of Evidence 701, lay witnesses may state their understanding of the use of another person’s statements “only if rationally based on the perception of a witness and helpful either to an understanding of the testimony of the witness on the stand or to the determination of a fact in issue.” United States v. Cox, 633 F.2d 871, 875 (9th Cir.1980), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981). Martin’s language on the tapes is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to Martin and his audience. To the uninitiated listener, Martin speaks as if he were using code. Alvaro’s opinions are based upon his direct perception of the event, are not speculative, and are helpful to the determination of Martin’s involvement in the protection scheme and the subsequent attempt to silence Ricci with “hush money.” Moreover, the trial court vigorously policed the government’s examination of Alvaro to ensure that he was not asked to interpret relatively clear statements. Under these circumstances, we find that the court did" }, { "docid": "5262518", "title": "", "text": "that the issue before us is the following: did the district court commit reversible error in concluding that the Eddystone evidence’s probative value for the purpose of proving pretext was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay and waste of time? See Fed.R.Evid. 403. I therefore turn to this question. II. According to our precedents, “[a] trial judge is given Very substantial discretion’ when striking a Rule 403 balance.” Eufrasio, 935 F.2d at 572. A trial judge’s ruling under Rule 403 may be reversed only if the judge committed an abuse of discretion. Id. Indeed, we have held that “a trial judge’s decision to admit or exclude evidence under Fed.R.Evid. 403 may not be reversed unless it is ‘arbitrary and irrational.’” Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir.1990), cert. denied, 501 U.S. 1217, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991), (quoting United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986)); see also United States v. Friedland, 660 F.2d 919, 929 (3d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982); United States v. Long, 574 F.2d 761, 767 (3d Cir.), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). We have also observed: If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal. United States v. Long, 574 F.2d at 767; see also Eufrasio, 935 F.2d at 572. As the Seventh Circuit aptly wrote in a case quite similar to this one: The balancing of probative value and prejudicial effect, like other comparisons of intangibles, requires an exercise of judgment rather than a computation. Only in an extreme case are appellate judges competent to second-guess the judgment of the person on the spot, the trial judge. Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir.), cert. denied, 498" }, { "docid": "925627", "title": "", "text": "the appellant handed the closed shoe box to her husband who then opened the box and gave the bags of cocaine to the undercover agents. Clearly the jury did not credit this testimony. . Alfredo Diaz allowed the agents to take the “samples” of cocaine with them. These samples, valued at approximately $5,000 to $8,000, were subsequently field tested and found positive for cocaine. . See, e. g., United States v. Ayala, 643 F.2d 244 (5th Cir. 1981); United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979); United States v. Hare, 589 F.2d 242 (5th Cir. 1979); United States v. Silva, 580 F.2d 144 (5th Cir. 1978); United States v. Bower, 575 F.2d 499 (5th Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 572, 58 L.Ed.2d 654 (1978); United States v. Alonzo, 571 F.2d 1384 (5th Cir.), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978); United States v. Hansen, 569 F.2d 406 (5th Cir. 1978); United States v. Morris, 568 F.2d 396 (5th Cir. 1978); United States v. Alexander, 559 F.2d 1339 (5th Cir. 1977), cert. denied, 434 U.S. 1078, 98 S.Ct. 1271, 55 L.Ed.2d 785 (1978); United States v. Scott, 555 F.2d 522 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977); United States v. Alfonso, 552 F.2d 605 (5th Cir.), cert. denied, 434 U.S. 857, 98 S.Ct. 179, 54 L.Ed.2d 129 (1977); United States v. Worthington, 544 F.2d 1275 (5th Cir.), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977); United States v. Hernandez-Vela, 533 F.2d 211 (5th Cir. 1976); United States v. Fischer, 531 F.2d 783 (5th Cir. 1976); Bourbois v. United States, 530 F.2d 3 (5th Cir. 1976); United States v. Doe, 525 F.2d 878 (5th Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2179, 48 L.Ed.2d 801 (1976); United States v. Freund, 525 F.2d 873 (5th Cir.), aff’d following remand, 532 F.2d 501 (5th Cir.), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 377 (1976); United States v. Toombs, 497 F.2d 88 (5th Cir. 1974); United States v. Davis, 487" }, { "docid": "2304550", "title": "", "text": "okayed them to Rudolph Farone for a loanshark — .” He was interrupted by an objection which was overruled. Finally, in reference to Brocco’s and Vastola’s remarks that they could “put it out for” two or three, Jones testified, “We could put it out for two. We could put it out for three. It’s two points, two percent, terms used in loanshark loans.” The district court, relying on United States v. Dicker, 853 F.2d 1103 (3d Cir. 1988), and United States v. De Peri, 778 F.2d 963 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986), held that the above testimony was admissible under either Fed.R.Evid. 701 or 702. The court opined that Jones was qualified as an expert “in the fields relevant to this case” and that his opinions on the meaning of phrases used in the wiretap evidence would be helpful to the jury. On appeal, Vastóla argues that the district court erred in its evidentiary ruling because Jones was neither qualified, offered or admitted an expert on loansharking under Fed.R.Evid. 702 and his testimony went beyond the scope of permissible lay opinion testimony under Rule 701. Vastóla maintains that because “ ‘loansharking’ was the gravamen of all the charges on which [he] was convicted,” this improperly admitted testimony caused severe prejudice requiring reversal of his convictions on all counts. We disagree. In De Peri, this court held that a police officer’s explanation of cryptic remarks made in tape-recorded conversations between himself and the defendant were admissible under Rule 701 because it was rationally based on his perception of the conversation and helpful to the trier of fact. 778 F.2d at 977. The court noted: Martin’s language on the tapes is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to Martin and his audience. To the uninitiated listener, Martin speaks as if he were using code. Id. In Dicker, we explained that De Peri did not authorize the admission of all opinion testimony regarding the substance of recorded conversations. Such testimony is admissible" }, { "docid": "22193592", "title": "", "text": "when it permitted Field’s lay opinion testimony. First, in United States v. De Peri we ruled that the trial court did not abuse its discretion when it permitted the Government’s witness to provide his lay opinion regarding his understanding of the meaning of tape recorded conversations between himself and one of the defendants. 778 F.2d 963, 977-78 (3d Cir.1985). We found that the witness’s opinions were helpful to the jury because the “language on the tapes is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to [the defendant] and his audience. To the uninitiated listener, [the defendant] speaks as if he were using code.” Id. at 977. We further noted that “the trial court vigorously policed the government’s examination of [the witness] to ensure that he was not asked to interpret relatively clear statements.” Id. at 978. Second, in United States v. Dicker we found that the district court abused its discretion by permitting a Government agent to testify regarding his understanding of his recorded conversations with the defendant. 853 F.2d 1103, 1110 (3d Cir.1988). In Dicker we stated that “interpretation of clear conversations is not helpful to the jury, and thus is not admissible under either [Rule 701 or 702].” Id. at 1108. We found that the Government witness “simply ascribed his own, illicit meaning to straightforward, potentially legitimate statements. This admission was surely prejudicial, and was not helpful to a clear understanding of the testimony. The recorded conversations, unlike those at issue in De Peri, were perfectly clear with out [the witness’s] ‘interpretations.’ ” Id. at 1110. Here the District Court found that the Government properly laid a foundation under Rule 701 for Field’s statement that Amitex was a “scam.” First, Field based the statement on his “rational perceptions,” Hoffecker’s statements, and his previous interactions with Hoffecker. Supp. app. at 52. The court found that Field’s opinion was not based on specialized knowledge because he had “first-hand knowledge and observation.” App. vol. 30 at 21. Second, the statement was helpful to the jury because Field’s perception that the" } ]

[ { "docid": "21098010", "title": "", "text": "the Washington Times Company were still being collected and that Ell-wanger was bringing these suits claiming to be credit manager of the corporation, and that affiant thought Ellwanger was the proper party to be served: that Mills then said that neither Ellwanger nor he (Mills) worked for the Washington Times Company, but both worked for American Newspapers, Inc.; Mills further stated that Lesher was his assistant and that Lesher and he audited the book entries of money collected by Ellwanger on old accounts of the Washington Times Company ; affiant then directed the marshal to serve the summons on Mills which he did. An affidavit of Harry Allen, deputy marshal, was filed which corroborated in substance the affidavit of affiant McCart. No other testimony was offered upon the motion. Thereupon the court sustained the motion to quash and entered a judgment dismissing the case. The present appeal was then taken. We agree with the decision of the lower court. It is conceded that under the laws of the state of New York mere dissolution of a corporation does not absolutely destroy its existence, but that it continues its corporate character for the liquidation of its assets and the payment of its debts, and it may be sued in its corporate name. General Corporation Law of New York (Consol.Laws, c. 23) § 29, as amended by Laws 1932, c. 552; New York Stock Corporation Law (Consol.Laws N.Y. c. 59) § 105, par. 7, art. 10; Metropolitan Telephone & Telegraph Co. v. Metropolitan Telephone & Telegraph Co., 156 App.Div. 577, 141 N.Y.S. 598; Giovannangeli v. Levich & Pollach, Inc., 134 Misc. 245, 235 N.Y.S. 28, 29. See, also, section 785, D.C.Code 1901 (D.C.Code 1929, T. 5, § 408). It is clear from the affidavits filed in the case that the Washington Times Company was a New York corporation engaged in business in the District of Columbia prior to September 25, 1934, when it was dissolved in accordance with the laws of New York, and that since that time it has not engaged in business in the District and has had' no place" } ]

[ { "docid": "11959621", "title": "", "text": "difficulty in disposing of the issue presented in respect to the Lieberknecht patent upon the record before us. As we have already stated, the complaint alleges that Kalio, Inc., is the owner of this patent. But the complaint also states that Knitting Machines Corporation has represented that it controls all of the patents in issue and is possessed of the right to sue for alleged infringement of them. In his letter of May 9, 1939, Miller does specifically state that Knitting Machines Corporation controls the Lieberknecht patent and plainly represents that Knitting Machines Corporation is entitled to sue for its infringement. It should be noted also that in the complaint in the Massachusetts suit, Kalio, Inc., is stated to be the owner of the Lieberknecht patent and Knitting Machines Corporation is alleged to be a licensee of Kalio, Inc. The status of the Lieberknecht patent in the light of these allegations is not clear to us. The defendant contends that if the rights given by Kalio, Inc., to Knitting Machines Corporation amount to nothing more than a mere license, Knitting Machines Corporation would have no right to sue Alfred Hofmann, Inc., for patent infringement without joining Kalio, Inc., as a party plaintiff and, conversely, Alfred Hofmann, Inc., would have no right to maintain an action for a declaratory judgment against Knitting Machines Corporation without the joinder of Kalio, Inc., to declare the patent invalid. See Waterman v. Mackenzie, 138 U.S. 252, 255, 256, 11 S.Ct. 334, 34 L.Ed. 923, and Contracting Division, A. C. Horn Corporation v. New York Life Ins. Co., 2 Cir., 113 F.2d 864. The plaintiff takes the position that the justiciable act in the case at bar is the threat by Knitting Machines Corporation of suit for infringement against Alfred Hofmann, Inc., and its customers, and that a declaratory judgment action may and must be maintained against the one who commits such an act. The plaintiff contends that even if this be not so, Rule 13(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, compels Knitting Machines Corporation to raise the issue of" }, { "docid": "14265278", "title": "", "text": "Statutes could not retroactively create jurisdiction where it was lacking at the time the action was filed. Id. at 7. The court noted that the “Plaintiff does not dispute” that the agreements it relied upon as its basis for rights in the patent “were not valid during the time that Plaintiff was dissolved.” Id. at 6. Therefore, the court held, the appellant did not have enforceable rights to the '471 patent on the day it filed its complaint and could not establish federal standing. Id. at 7. The appellant timely filed this appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1296(a)(1)!' DISCUSSION I We review the district court’s grant of summary judgment without deference. Schumer v. Lab. Computer Sys., Inc., 308 F.3d 1304, 1310, 64 USPQ2d 1832, 1837 (Fed.Cir.2002). This court reviews questions of law, including standing and capacity to sue under Federal Rule of Civil Procedure 17(b), without deference. Lans v. Digital Equip. Corp., 252 F.3d 1320, 1328, 59 USPQ2d 1057, 1061 (Fed.Cir.2001). II It appears that under Florida law, the appellant had capacity to sue at the time of the complaint, at least insofar as the suit for patent infringement was “necessary to wind up and liquidate its business and affairs.” Fla. Stat. ch. 607.1421(3) (2001). Under Federal Rule of Civil Procedure 17(b), “[t]he capacity of a corporation to sue. or be sued shall be determined by the law under which it was organized.” The Florida courts are now apparently unanimous that, although under chapter 607.1622 a corporation loses its capacity to sue if it fails to file an annual report, once it is administratively dissolved, somewhat paradoxically it regains capacity to sue under chapters 607.1421(3) and 607.1405(2)(e), as “ ‘necessary to wind up and liquidate its business and affairs.’ Cygnet Homes, Inc. v. Kaleny Ltd. of Fla., 681 So.2d 826, 826 (Fla. 5th Dist.Ct.App.1996), (quoting Fla. Stat. ch. 607.1421(3)); Nat’l Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034, 1035 (Fla. 4th Dist.Ct.App.2002) (overruling its precedent to the contrary and adopting the rule of Cygnet). Because the appellant was administratively dissolved on August 23, 1996," }, { "docid": "15162001", "title": "", "text": "recognized this as the logical result under a New York statute similar to § 278. Whether the Vice President and Secretary of defendant who signed the employment contract were authorized to do so, need not be determined. Even if it be assumed that they had no actual authority, the defendant impliedly ratified the contract by accepting the bene fits of plaintiffs’ services in securing the substantial reduction in the deficiency and penalty. Chard v. Ryan-Parker Const. Co., 182 App.Div. 455, 169 N.Y.S. 622, 626 (1918); Levitas v. Yarmel Realty Corp., 127 Misc. 627, 216 N.Y.S. 419, 421 (1926). New York law governs the ratifying effect of defendant’s acceptance of the benefits. Restatement— Conflict of Laws, § 331’ (1934). It follows that the contract between plaintiffs and defendant was valid. CAPACITY OF DEFENDANT TO BE SUED The present action was not brought until after the expiration of three years from the time when defendant was dissolved. Its capacity to be sued under the circumstances is determinable by Delaware law. United States v. Village Corp., 298 F.2d 816, 817 N. 4 (4th Cir. 1962); F.R.Civ.P. 17(b). 8 Del.C. § 278 provides “* * * with respect to any action, suit or proceeding begun or commenced by or against the corporation within three years after the date of the expiration or dissolution, the corporation shall, only for the purpose of such actions, suits or proceedings so begun or commenced, be continued bodies corporate beyond the three-year period and until any judgments, orders, or decrees therein shall be fully executed”. Section 279 empowers the Court of Chancery, upon the application of a creditor or stockholder, who shows good cause therefor, to appoint one or more directors as trustees or one or more persons as receivers of the corporation, to take charge of its estate and effects, and to collect its debts and property “with power to prosecute and defend, in the name of the corporation, or otherwise, all such suits as may be necessary or proper for the purposes aforesaid, * * * ” Read together, §§ 278 and 279 would appear to authorize" }, { "docid": "5370375", "title": "", "text": "up.” The defendant contends that this provision limits the right to sue to claims which have ripened into causes of action at the time of the dissolution. None of the New York decisions cited by either side construes the statute on this point and we have been unable to find any. But in the absence of authoritative decisions limiting them, the words of the statute seem clear. Existence is continued for “suing and being sued for the purpose of enforcing such debts or obligations.” That an existing contract is an obligation seems too certain a proposition to require extensive argument or marshaling of authorities to prove it. A contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty. Restatement, Contracts § 1. That the defendant, by its contract, came under obligation to the plaintiff is plain. If it did not perform the plaintiff could sue for the breach of the obligation under the clear words of the statute, even though it had voluntarily dissolved. Compare City of Philadelphia v. Lieberman, 3 Cir., 1940, 112 F.2d 424, 428. Under the New York statute the figure of speech analogy is not death of the corporation, but its retirement from active business. The defendant also says that after the plaintiff corporation was dissolved, there being no plaintiff, there could be no diversity of citizenship. This is the same point as that above stated in a somewhat different way. If the corporation, under the New York law, was sufficiently alive to sue, as we hold it was, the requisite diversity of citizenship existed. The parties were proper and there was a controversy. We pass, therefore, to the substance of the case. The contract of May 20, 1918, concerns a transfer of the plaintiff’s tangible assets and good will and the assignment of existing contracts to the defendant. Included in the transaction were certain patents then owned by the plaintiff. Two of these patents, which had been issued to Jesse L. Spence, vice" }, { "docid": "14656219", "title": "", "text": "of infringement of claims 6, 9, and 10, leaving in issue claims 1-5, inclusive, and 11. The Parties 2. Plaintiff in both actions, Copease Manufacturing Co., Inc., is a Delaware corporation organized November 16, 1954, and has its principal place of business in New York, New York. Plaintiff' is, and has been since its inception, engaged solely in the business of granting, licenses under the patent in suit. Civil Action 55 C 550 3. Defendant American Photocopy-Equipment Co., a partnership, had its-principal office and place of business at. Chicago, Illinois. It ceased business operations in January 1954, and contemporaneously conveyed its assets to defendant American Photocopy Equipment. Company, an Illinois corporation, formed in January 1954, shortly before the-aforesaid conveyance of partnership assets. 4. Defendant Apeco, the corporation, has its principal office and place of business within the Northern District of Illinois. It succeeded to the business of the partnership defendant. 5. Defendant Samuel G. Rautbord, a resident of the Northern District of Illinois, was the sole general partner of the partnership defendant and is president and one of the principal stockholders of the corporate defendant. Civil Action 55 C 2179 6. Defendant Poray, Inc., the sole defendant in this action, is an Illinois corporation having its principal office and place of business in the Northern District of Illinois. The Acquisition of Patent in Suit 7. Plaintiff acquired the patent in suit from the patentee Eisbein by written assignment dated November 16, 1954, pursuant to an agreement dated August 14, 1953. The assignment does not expressly convey any ehoses in or rights of action for damages or right to sue in respect of any act of infringement that might have occurred prior to the date of the assignment. However, the agreement does expressly contemplate assignment of the right to sue for any asserted infringement of this or any other U. S. patent issued to Dr. Eisbein or to Develop, k. g., a partnership of which Dr. Eisbein was one of three partners. The Process 8. The device of the patent in suit and the accused machines comprise developing appartus designed primarily" }, { "docid": "10428364", "title": "", "text": "systems are provided with static shields between their primary and secondary windings solely for the purpose of balancing the systems. In these respects we think it cannot be said that defendants are using equivalents of plaintiff’s elements. The remaining question is whether the defendant Rauland, the general manager of the defendant corporation, is a contributing infringer, and whether both defendants are estopped by the following facts from denying validity or infringement. On September 25, 1937, Bank brought suit against The Webster Company for the infringement of this patent; On April 25\", 1938, Bank granted a license to that Company under this patent, and on May 3, 1938, The Webster Company consented to the entry of a decree in that suit holding the patent valid and infringed. Except for some initial payments, the Webster Company license was free from the payment of any royalties until the validity of this patent was fully adjudicated. Subsequent to that decree the defendant corporation here purchased a part of the business of The Webster Company, and on account of such transaction plaintiff contends that defendants stepped into the shoes of The Webster Company and were thus estopped from contesting the validity of the patent. We do not think so. The defendants had no part in the Webster litigation, and in the absence of privity they are not liable for the obligations of The Webster Company. See Racine Engine & Machinery Co. v. Confectioners’ Machinery & Mfg. Co., 7 Cir., 234 F. 876. We think such privity did not exist. The district court found that neither the corporate nor the individual defendant was in privity with The Webster Company in the litigation between Bank and that Company, and we-think that decision was correct. Furthermore, the evidence shows that the defendant, Rauland, acted solely in his capacity as an officer of .the corporate defendant and could not be held liable for this alleged infringement. See Weston Electrical Instrument Co. v. Empire Electrical Instrument Co., C.C.N.Y., 166 F. 867. In conclusion, we affirm the district court’s decision as to non-infringement, and' as to invalidity of the claims because" }, { "docid": "5370374", "title": "", "text": "of the contract already referred to, the plaintiff, a New York corporation, filed a certificate of voluntary dissolution. The defendant contends that such voluntary dissolution marks the death-of the plaintiff as a corporate body, that rigor mortis has long since set in and that there is, therefore, no plaintiff to conduct the action. The New York statute, however, must be examined before this question can be answered. At the time the voluntary petition of dissolution was filed the New York statute provided with respect to such dissolution of a New York corporation, General Corporation Law, Consol. Laws, c. 23, Laws of 1909, Ch. 28, § 221 (3) : “Said corporation shall nevertheless continue in existence for the purpose of paying, satisfying and discharging any existing debts or obligations, collecting and distributing its assets and doing all other acts required in order to adjust and wind up its business and affairs, and may sue and be sued for the purpose of enforcing such debts or obligations, until its business and affairs are fully adjusted a\"d wound up.” The defendant contends that this provision limits the right to sue to claims which have ripened into causes of action at the time of the dissolution. None of the New York decisions cited by either side construes the statute on this point and we have been unable to find any. But in the absence of authoritative decisions limiting them, the words of the statute seem clear. Existence is continued for “suing and being sued for the purpose of enforcing such debts or obligations.” That an existing contract is an obligation seems too certain a proposition to require extensive argument or marshaling of authorities to prove it. A contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty. Restatement, Contracts § 1. That the defendant, by its contract, came under obligation to the plaintiff is plain. If it did not perform the plaintiff could sue for the breach of the obligation under the" }, { "docid": "17006222", "title": "", "text": "CHASE, Circuit Judge. ■[1,2] The plaintiff, a New York corporation, sued the defendants, also New York corporations, for the infringement of a patent for a machine for laying cloth, and for unfair competition consisting in the sale of infringing machines. The defendants answered by denying such allegations generally. They also filed a counterclaim alleging the invalidity and non-infringement of the patent and that the plaintiff had unfairly competed with them. They sought both a temporary and permanent injunction and a declaration of non-infringement. The gist of the alleged unfair competition was that the plaintiff, knowing that it had “no valid claim for patent infringement or unfair competition against defendants,” had commenced the suit in order to give “untrue notices of patent infringement and unfair competition by defendants to the trade, thus intimidating the customers of defendants and thus causing said customers to refuse to purchase cloth laying machines from defendants * * * ” As there was no diversity, the court dismissed the counterclaim for lack of jurisdiction and the defendants have appealed, as they may since there was a prayer for an injunction. Drittel v. Friedman, 2 Cir., 154 F.2d 653. The review of orders made appealable by statute regardless of finality is not touched by Rule 54(b) Fed. Rules Civ. Proc. 28 U.S.C.A. Its purpose is to provide a way for determining whether a judgment, which would not otherwise appear to be final and would not be appealable unless final, is final for appeal purposes. Cf. Dickinson v. Petroleum Conversion Corporation, 338 U.S. 507, 70 S.Ct. 322. The district court did, of course, have jurisdiction of the suit for patent infringement and the defendants could counterclaim to have the patent held invalid or, if valid, not infringed. Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450. So the dismissal of the entire counterclaim cannot be sustained. But a more difficult problem to solve is whether there was jurisdiction over the cause of action for unfair competition alleged in the counterclaim. The appellants insist that there was by virtue of 28 U.S.C.A. §§ 1338, 2201 and" }, { "docid": "16246813", "title": "", "text": "plaintiff contends that Swift and Cook have “transact [ed] business within the state” on their own behalf, in addition to their activities on behalf of Vanura. CPLR § 302(a) 1. Finally, he argues that the individuals participated in and benefited from Vanura’s alleged conversion of the one million shares, thereby apparently committing a “tortious act within the state.” CPLR § 302(a) 2. A. Trustee Theory Plaintiff asserts that under Nevada law, the directors of a dissolved corporation become trustees thereof for the purpose of defending suits, and are jointly and severally liable for debts incurred by the corporation before dissolution. This is an incomplete and inaccurate representation of Nevada law. Assuming that Swift and Cook were directors of Vanura at the time of its dissolution (which was neither alleged nor proven), it is true that they would have been trustees of the corporation for the purpose of winding up its affairs. Nevada Revised Statutes § 78.590. After final distribution, however, it would seem that their trusteeship could be continued only upon application by a creditor or stockholder to the Nevada district court. Nevada Revised Statutes §§ 78.595, 78.600, 78.605, 78.610. Moreover, their liability as trustees, while joint and several, would extend only “to the amounts of the moneys and property of the corporation which shall come into their hands and possession.” Nevada Revised Statutes § 78.595. Although New York permits service of process upon the secretary of state to commence a suit against an authorized foreign corporation even after dissolution (BCL § 1311) and provides for the appointment of a receiver to liquidate assets in New York of any dissolved foreign corporation (BCL § 1218), there is no statutory authority for holding the corporation’s former officers or directors personally liable for claims against the corporation. In such situations, New York courts look to the law of the state of incorporation. See, e. g., Lehrich v. Sixth Avenue Bancorporation, 251 App.Div. 391, 296 N.Y.S. 358 (1st Dep’t 1937). Cf. Matter of National Surety Co., 283 N.Y. 68, 27 N.E.2d 505 (1940), cert. denied sub nom., Laughlin v. Pink, 311 U.S. 707," }, { "docid": "14873849", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW LYNCH, District Judge. I. FINDINGS OF FACT The Parties and Jurisdiction 1. This is a patent infringement action filed April 8, 1964, seeking an injunction and damages for infringement of three patents, all of which are directed to the provision of a slot in a flange of admittedly old bobbins or winding forms for accommodating the beginning or lead-in wire of the winding on such bobbins or winding forms. Defendant contends that the three patents in suit are invalid but, if valid, Defendant admits that the single form of slot used in the bobbins which it manufactures renders these bobbins an infringement (or contributory infringement) of all three patents. 2. Plaintiff, Amerline Corporation (hereinafter referred to as “Amerline”), formerly American Molded Products Company, was a corporation of the State of Illinois having its principal place of business in Chicago, Illinois. After commencement of this action, it assigned all its assets and liabilities to C-R Plastics Corporation, an Illinois corporation which, by change of name, became Amer-line Corporation and also has its principal place of business in Chicago, Illinois. The latter Amerline Corporation has been substituted for the former Amerline Corporation as one of the Plaintiffs. 3. Plaintiff, Minneapolis-Honeywell Regulator Company (hereinafter referred to as “Honeywell”), is now, by change of name, Honeywell Inc., and is a corporation of the State of Delaware, having its principal place of business in Minneapolis, Minnesota. 4. Defendant, Cosmo Plastics Company (hereinafter referred to as “Cos-mo”), is a partnership having its principal place of business in Cleveland, Ohio. 5. The Court has jurisdiction of the parties and the subject matter [Amended Complaint and Answer]. 6. In addition to the instant litigation which initially included Magnecraft Electric Company as a Defendant, Plaintiffs, on April 8, 1964, filed two additional suits in this District agáinst customers of Defendant, all involving the same three patents: Civil Action No. 64 C 618, Amerline Corporation and Minneapolis-Honeywell Regulator Company v. Electro Counter & Motor Co.; Civil Action No. 64 C 619, Amerline Corporation and Minneapolis-Honeywell Regulator Company v. Comar Electric Co. On November" }, { "docid": "22301935", "title": "", "text": "678; Derman v. Gersten, D.C., 22 F.Supp. 877; Petersine Incubator Co. v. Bundy Incubator Co., D.C., S.D.Ohio, 34 U.S. P.Q. 251. The declaratory judgment has been asserted through counterclaims. Meinecke v. Eagle Druggists Supply Co., D.C., 19 F.Supp. 523; Knaust Bros. v. Goldschlag, D.C., 28 F.Supp. 188; contra: Hann v. Venetian Blind Corp., D.C., 15 F.Supp. 372; Counterclaim for Declaration of Invalidity of Patent in Suit for Its Infringement, 50 Harvard Law Review 357. O’Brien, Restrictions on the Usefulness of Declaratory Judgments in Patent Suits, 17 Journal of Patent Office Society 270. This element was either unmentioned completely or referred to only in the statement of facts in the following cases: E. Edelmann & Co. v. Triple-A Specialty Co., 7 Cir., 88 F.2d 852; United States Galvanizing & Plating Equipment Corp. v. Hanson-Van WinkleMunning Co., 4 Cir., 104 F.2d 856; Zenie Bros. v. Miskend, D.C., 10 F.Supp. 779. Duro Test Corp. v. Welsbach St. Lighting Co., D.C., 21 F.Supp. 260; B. F. Goodrich Co. v. American Lakes Paper Co., D.C., 23 F.Supp. 682. In Tinius Olsen Testing Mach. Co. v. Baldwin-Southwark Corp., D.C., 25 F. Supp. 885, the Court recognized that an actual controversy existed but for other reasons refused to exercise its discretion. Mitchell & Weber v. Williamsbridge Mills, D.C., 14 F.Supp. 954; Northern Motors Corp. v. Divco-Twin Truck Co., D.C., 28 F.Supp. 308. See 3 Walker on Patents, Deller’s Edition, 1895; O’Brien. Restrictions on the Usefulness of Declaratory Judgments iif Patent Suits, 17 Journal of Patent Office Society 270, 279. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147. New York Stock Corporation Law, § 105(8); see Klaxon Co. v. Stentor Elec. Co., 3 Cir., 115 F.2d 268, reversed on other grounds, 61 S.Ct. 1020, 85 L. Ed. 1477; Grand St. Realty Co. v. Universal Textile Co., City Ct.N.Y., 191 N.Y.S. 655; Cunningham v. Glauber, 133 App.Div. 10, 117 N.Y.S. 866. See, also, Metropolitan Telephone & Telegraph Co. v. Metropolitan Tel. & Tel. Co., 156 App.Div. 577, 141 N.Y.S. 598." }, { "docid": "6215325", "title": "", "text": "527. Fortunately, determining where the wrong occurred is not a difficult problem in this case as almost all the contacts involved are in New York. Not only is New York the forum state, but plaintiff is a New York corporation doing business in New York. Defendant Morgan-Jones is likewise a New York corporation and the threatening letter emanated from its New York office. The affidavits do- not indicate where the letter was circulated, but it is a fair assumption that a selling agent, in New York would have customers in New York. Applying the rule that the law of the place of wrong governs, I find that the wrong occurred in New York and that New York law, therefore, determines whether a right of action exists in favor of plaintiff. New York law is clear to the effect that a person whose business is damaged by false and malicious statements of a competitor has a right of action against the competitor. Union Car Advertising Co. v. Collier, 263 N.Y. 386, 189 N.E. 463; Nann v. Raimist, 255 N.Y. 307, 174 N.E. 690, 73 A.L.R. 669; Allen Mfg. Co., Inc. v. Smith, 224 App.Div. 187, 229 N.Y.S. 692. The Union Car case also makes it clear that it is part of the plaintiff’s case to establish that the statements were false and malicious. “The part in italics” [of the letter written by a defendant], said the court at page 397 of 263 N.Y., at page 468 of 189 N.E., “has reference to the plaintiff or to the man behind the plaintiff, Mr. Wineburgh, and it is said that these statements were false and malicious. The plaintiff must prove them to be such or he has no case.” Since proof of the invalidity of the patent relied on by Morgan-Jones or its non-infringement is therefore essential to plaintiff’s claim, the case against Morgan-Jones “arises under” the patent laws. While I am satisfied that I am required to apply the New York law that, in a suit for unfair competition by statements which caused damage to the plaintiff, the plaintiff must prove that" }, { "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": "11959610", "title": "", "text": "the right to sue for their infringement. Paragraph 9 of the complaint is as follows : “That an actual controversy exists between plaintiff and defendants, in that defendants, Knitting Machines Corporation and Max C. Miller, have charged that the Schubert and Salzer machines and relevant parts thereof distributed and sold by plaintiff infringe each of said Letters Patent and have threatened to sue customers of plaintiff for alleged infringement of each of said Letters Patent by reason of their acquisition from plaintiff and use of plaintiffs Schubert and Salzer machines and relevant parts thereof.” The complaint goes on to allege that both Miller and Knitting Machines Corporation had been advised by the plaintiff that it believes that the patents arc invalid and are not infringed by the Schubert and Salzer machines sold by the plaintiff and that the plaintiff has urged the defendants to bring an infringement suit against it to settle the controversy; that no suit has been instituted though the defendants continue to threaten to sue the plaintiff’s customers. The plaintiff then states six grounds why the patents should be adjudged invalid, and alleges that the Schubert and Salzer machines and their parts sold by it do not infringe any of the patents. The complaint prays for a declaratory judgment adjudging the patents invalid and not infringed by the machines and parts sold by the plaintiff, and for an injunction to restrain Knitting Machines Corporation and Miller from stating or writing in the press, trade journals or elsewhere that the Schubert and Salzer machines and parts sold by the plaintiff infringe the patents or that these patents or any of them cover the Schubert and Salzer machines or parts, and from suing or threatening to sue plaintiff’s customers. Alfred Hofmann, Inc., is a Delaware corporation. Knitting Machines Corporation is also a Delaware corporation. Kalio, Inc., is a New York corporation. Miller is a resident of Rhode Island. Service was made upon Knitting Machines Corporation, but no service has been made upon Kalio, Inc., or Miller and neither of them has appeared voluntarily. Knitting Machines Corporation moved to dismiss" }, { "docid": "21224268", "title": "", "text": "in a position to initiate a suit against the alleged infringer or his dealers. An alleged infringer could not sue the patentee for a declaration that the plaintiff was not infringing or that the patent was invalid. Today the alleged infringer, once he is threatened by a patentee, has a remedy by a complaint for a declaratory judgment. Now the controversy between the parties as to whether infringement exists is in either instance essentially one arising under the Patent Laws.” Aralac Inc. v. Hat Corporation of America, 3 Cir., 166 F.2d 286, 291, 292, and cases cited. In Grip Nut Co. v. Sharp, 124 F.2d 814, 815 (C.A.7, 1941), the 7th Circuit said: “Now, ‘ * * * the controversy between the parties as to whether a patent is valid, and whether infringement exists is in either instance essentially one arising under the patent laws of the United States.’ ” If one threatened with a charge of infringement may, by employment of the Declaratory Judgment Act, test the validity of a patent, I see no reason why the owner of a patent which is charged with invalidity should not make equal use of such remedy. See Talbot v. Quaker State Oil Refining Co., 104 F.2d 967, 968 (C.A.3, 1939). The thrust of plaintiff’s complaint, admittedly disclosing a justiciable controversy, is to have resolved the question of the validity of the patent. The complaint avers that it relies on Section 102, Title 35 U.S.C.A. (Patent Statute) for its invoking the remedy provided by the Declaratory Judgment Act. Its prayer for relief asks, in substance, that the conflicting claims as to the validity of its patent be resolved. Defendant’s motion admits that he claims that he invented the disclosure of plaintiff’s patent (thereby charging invalidity); that he is disparaging plaintiff’s patent and that he is threatening plaintiff’s customers with liability in large amounts if they continue using rings embodying plaintiff’s patent, and he threatens to sue plaintiff at common law. He asserts, however, that the matter is not ripe for decision because defendants are not manufacturing any piston rings now, and “do" }, { "docid": "541734", "title": "", "text": "MEMORANDUM CROAKE, District Judge. This is a motion under Rule 12(b) (2), (3) and (4), Fed.R.Civ.P., for an order to quash the return of service of the process of the complaint and to dismiss the complaint on the following grounds: 1. the court lacks jurisdiction over the person of the defendant; 2. the action is laid in the improper venue; and (3) there is an insufficiency in the service of process. The underlying action seeks a declaratory judgment on the validity of a patent and permanent and preliminary injunctions before trial enjoining the defendant, Samuel Moore & Co. (hereafter MOORE) from enforcing United States Letters Patent No. 3,021,871 against the plaintiff, Metropolitan Staple Corp. (hereafter METROPOLITAN) or its customers. Jurisdiction is based on 28 U.S.C. § 1338(a) (1964). Several things are clear at the outset. First, venue in a declaratory judgment action based on patent infringement is not covered by the special venue statute which ordinarily governs in patent infringement cases. See General Tire & Rubber Co. v. Watkins, 326 F.2d 926 (4th Cir. 1964); Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., 267 F.Supp. 938 (S.D.N.Y.1967); Melton Corp. v. Dow Chemical Corp., 182 F.Supp. 546 (S.D.N.Y.1959). Compare 28 U.S.C. § 1400 (1964). Instead, venue is governed by the general venue statute which provides that a corporation may be sued in any district where it does business. 28 U.S.C. § 1391 (1964). Second, the plaintiff bases his main allegation of in personam jurisdiction on the ground that the defendant is doing business in this district. It is therefore apparent that the questions of personam jurisdiction and venue both turn on whether the defendant is doing business in this district. The defendant states that it is incorporated under the laws of the State of Ohio and that it does not have a place of business in New York. MOORE further states that it subscribes to a commercial telephone listing service in New York City but the name — Samuel Moore & Co. — does not appear on the office door or on any roster in the lobby of the building in" }, { "docid": "5370373", "title": "", "text": "GOODRICH, Circuit Judge. This is defendant’s appeal from judgment in favor of the plaintiff for $160,-821.92, entered in the United States District Court for the District of Delaware. The jury returned a verdict for $100,000 and the trial judge thereafter granted the plaintiff’s motion to add interest of $60,-821.92 to the judgment. The action was brought for breach of a contract under seal entered into on May 20, 1918 in New York. By the contract the plaintiff (Stentor) transferred to the defendant (Klaxon) all of its assets and its entire business as a going concern. Included in the transfer were certain patents then owned by the plaintiff, questions concerning which are the core of this litigation. At the outset defendant raises the point that this plaintiff has no capacity to sue. The point was raised below by a plea in abatement to which a demurrer was sustained. Stentor Electric Mfg. Co. v. Klaxon Co., D.C.Del.1938, 23 F.Supp. 351. The defendant’s contention arises out of the fact that on May 26, 1919, subsequent to the making of the contract already referred to, the plaintiff, a New York corporation, filed a certificate of voluntary dissolution. The defendant contends that such voluntary dissolution marks the death-of the plaintiff as a corporate body, that rigor mortis has long since set in and that there is, therefore, no plaintiff to conduct the action. The New York statute, however, must be examined before this question can be answered. At the time the voluntary petition of dissolution was filed the New York statute provided with respect to such dissolution of a New York corporation, General Corporation Law, Consol. Laws, c. 23, Laws of 1909, Ch. 28, § 221 (3) : “Said corporation shall nevertheless continue in existence for the purpose of paying, satisfying and discharging any existing debts or obligations, collecting and distributing its assets and doing all other acts required in order to adjust and wind up its business and affairs, and may sue and be sued for the purpose of enforcing such debts or obligations, until its business and affairs are fully adjusted a\"d wound" }, { "docid": "22685153", "title": "", "text": "plaintiffs for the infringement of letters patent owned by the defendant covering certain improvements in spring-tooth har rows, or from instituting or prosecuting any such suits against any person using the spring-tooth harrows manufactured by the plaintiffs, the court said: “ In substance, the complaint shows that the defendant has entered into a combination with various other manufacturers of spring-tooth harrows for the purpose of acquiring a monopoly in this country in the manufacture and sale of the same, and, as an incident thereto, has acquired all the rights of the other manufacturers for the exclusive sale and manufacture' of such harrows under patents* or interests in patents, owned by them respectively. Such k combination may be an odious and a wicked one, but the proposition that the plaintiffs, while infringing the rights vested in the deféndant under letters patent of the United States, is entitled to stop the defendant from bringing or prosecuting any suit therefor because the defendant is an obnoxious corporation, and is seeking to perpétuate the monopoly which is conferred upon it by its title to the letters patent, is a novel one, and entirely unwarranted. The party having 'such a patent has a right to bring suit on it, not only against a manufacturer who infringes, but against dealers and users of the patented article, if he believes the patent is being infringed; and the motive which prompts him to sue-is not open to judicial inquiry, because, having a legal right to sue, it is immaterial whether his motives are good or bad, and he is not required to give his reasons for the attempt to assert his legal rights. ‘ The exercise of the legal right cannot be affected by the motive which controls it.’ Kiff v. Youmans, 86 N. Y. 329.” In National Distilling Co. v. Cream City Importing Co., 86 Wisconsin, 352, 355, which was an action to recover the price of goods sold and delivered, one of the defences was that the plaintiff was a member of an illegal trust or combination to interfere with the freedom of trade and commerce." }, { "docid": "11959609", "title": "", "text": "BIGGS, Circuit Judge. The plaintiff Alfred Hofmann, Inc., brought a suit for a declaratory judgment pursuant to the provisions of Section 274d of the Judicial Code, 28 U.S.C.A. § 400, in the court below predicating jurisdiction upon the patent statutes of the United States. The complaint alleges that the plaintiff is engaged in the distribution and sale in the United States of Schubert and Salzer knitting machines and their parts; that the defendant Max C. Miller is the owner of Patent No. 1,995,643 for a welt-turning mechanism for knitting machines and of Patent No. 1,995,644 for a knitting machine; that the defendant Kalio, Inc., is the owner of Patent No. 2,140,366, issued on the application of Karl Richard Lieberknecht for a knitting machine; that the defendant, Knitting Machines Corporation, is the owner of Patents No. 2,217,-520 and 2,217,521 for knitting machines issued on October 8, 1940, on applications filed by the defendant Miller. The complaint states that the defendant, Knitting Machines Corporation, has represented to the plaintiff that it “controls” the five patents and has the right to sue for their infringement. Paragraph 9 of the complaint is as follows : “That an actual controversy exists between plaintiff and defendants, in that defendants, Knitting Machines Corporation and Max C. Miller, have charged that the Schubert and Salzer machines and relevant parts thereof distributed and sold by plaintiff infringe each of said Letters Patent and have threatened to sue customers of plaintiff for alleged infringement of each of said Letters Patent by reason of their acquisition from plaintiff and use of plaintiffs Schubert and Salzer machines and relevant parts thereof.” The complaint goes on to allege that both Miller and Knitting Machines Corporation had been advised by the plaintiff that it believes that the patents arc invalid and are not infringed by the Schubert and Salzer machines sold by the plaintiff and that the plaintiff has urged the defendants to bring an infringement suit against it to settle the controversy; that no suit has been instituted though the defendants continue to threaten to sue the plaintiff’s customers. The plaintiff then states" }, { "docid": "22301930", "title": "", "text": "and useless expenditure of money. The patentee himself, desiring to enjoin an infringement, need give no advance notice that his patent even exists. And yet, it seems best to limit declaratory relief for the infringer to cases in which an adversary claim has been made against him, though it may, it is believed, apply to an article not yet manufactured but only about to be manufactured. This requirement, present in practically all the adjudicated cases, refutes the fear that patentees might be harassed by prospective infringers and be obliged continually to defend their patents. The fact tlvat a patentee’s claim of infringement is a condition precedent of this type of action places the matter of adjudication of the patent within the control of the patentee, for, if he wishes to avoid adjudication, he can refrain from making charges of infringement. But having made the charge, he then exposes himself to adjudication. In other words, the mere existence of the patent is not a cloud on title, enabling any apprehensive manufacturer to remove it by suit. It requires an assertion of right under the patent to place the alleged infringer in gear to join issue and challenge the title.” Borchard, Declaratory Judgments, 2d Ed.1941, 807 (italics ours). In view of what we have just said, what happens to be our agreement with the learned District Court’s attitude toward the unfair competition action is irrelevant. The defendant’s argument that the cause should have been dismissed because plaintiff company instituted appeal subsequent to its dissolution was not seriously pressed. The question is clearly one to be determined by the law of the state of incorporation. New York where plaintiff was incorporated permits dissolved corporations to do all “acts required tc adjust and wind up its business and affairs” and to “sue and be sued in its corporate name.” The judgment of the District Court is reversed. Generally: United States Fidelity & Guaranty Co. v. Koch, 102 F.2d 288, this court reversing District Court (opinion unreported). As to patents: New Discoveries, Inc. v. Wisconsin Alumni Foundation, D.C., 13 F.Supp. 596; Bettis v. Patterson-Ballagh Corp.," } ]

[ { "docid": "23529919", "title": "", "text": "68 S.Ct. 1016, 92 L.Ed. 1742 (1948). Seagram objects to the fact that plaintiffs’ proof concerned the profit experience of Capitol City. It suggests that the best way of determining profits would be to consider the profits of an existing distributorship. But it came forward with no such proof, presumably for tactical reasons. We hold that the method of proof used by the plaintiffs was adequate in the circumstances. Since Seagram’s breach has made difficult a more precise proof of damages, it must bear the risk of uncertainty created by its conduct. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264-65, 66 S.Ct. 574, 90 L.Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684 (1929); Perma Research & Devel. Co. v. Singer Co., 542 F.2d 111, 116 (2d Cir. 1976); Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556, 565 (2d Cir. 1970); For Children, Inc. v. Graphics Int’I, Inc., 352 F.Supp. 1280, 1284 (S.D.N.Y.1972). New York law is in accord. Spitz v. Lesser, 302 N.Y. 490, 99 N.E.2d 540 (1951). As the court said in Wakeman v. Wheeler Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264, 266 (1886): “When it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain.” Accord, Randall-Smith v. 43rd Street Estates Corp., 17 N.Y.2d 99, 105-06, 268 N.Y. S.2d 306,215 N.E.2d 494 (1976); cf. Herman Schwabe, Inc. v. United Shoe Machinery Co., 297 F.2d 906 (2d Cir. 1962). Mere dispute on the validity of some of the figures cannot wipe out the evidence but merely emphasizes that the jury was presented with a factual question whose determination we should not" } ]

[ { "docid": "14916483", "title": "", "text": "property sold was of such a character as to make it difficult to ascertain with exactness what its value would have been if it had [been as represented] affords no reason for exempting the defendant from any part of the direct consequences of his fraud.” Kendrick at 940. Where injury is established, damages need not be demonstrated with precision. Under the long-standing — and typical — New York rule, when the existence of damage has been established, and the only uncertainty is as to its amount, the plaintiff will not be denied a recovery of substantial damages. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 456 (2d Cir.1977); W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases). See also Blue Cross, Appendix B at Part XII, supra (rejecting a similar challenge to sufficiency of plaintiffs’ proof of damages). The risk of uncertainty as to the amount of damage is upon the wrongdoer, Perma Research & Development v. Singer, 542 F.2d 111, 116 (2d Cir.1976), and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237 (1954). An estimate of damages, even when well-founded, “necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.” Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir.1964). “The law will make the best appraisal that it can, summoning to its service whatever aids it can command.” Sinclair Ref. Co. v. Jenkins Co., 289 U.S. 689, 697, 53 S.Ct. 736, 77 L.Ed. 1449 (1933). See Part IX.A (discussing pragmatic need for use of aggregate proof). In a class action demanding statistical analysis of damages, as in.any individual suit, the models presented by plaintiffs can be adopted in part, or not at all, by the jury without giving rise to a valid objection on grounds of undue speculation. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d" }, { "docid": "2176341", "title": "", "text": "value at the time of the breach is the measure of damages”), cert. denied, 499 U.S. 907, 111 S.Ct. 1109, 113 L.Ed.2d 218 (1991). The methodology of determining a business’s earnings and applying an earnings multiplier to fix the value of a business that was completely terminated is one we have approved. See Lamborn v. Dittmer, 873 F.2d 522, 533-34 (2d Cir.1989). The Bank attacks various aspects of the testimony offered by the plaintiffs expert. To the extent he departed from general valuation practices or adopted procedures subject to criticism, defendant had ample opportunity to elicit these facts and argue them to the jury. The expert’s training and background and the procedures he followed in arriving at a valuation presented the jury with the question of whether or not to accept the expert’s opinion and what weight to give it. See Enercomp, Inc. v. McCorhill Pub., Inc., 873 F.2d 536, 550 (2d Cir.1989). Further, when reviewing the sufficiency of the damages evidence, we are guided by the principle that if a plaintiff has shown it more likely than not that it has suffered damages, the amount of damages need only be proved with reasonable certainty. See W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases). New York has long had an established rule that: [Wjhen it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264 (1886); see Randall-Smith, Inc. v. 43rd St. Estates Corp., 17 N.Y.2d 99, 105-06, 268 N.Y.S.2d 306, 215 N.E.2d 494 (1966). The wrongdoer must shoulder the burden of the uncertainty regarding the amount of damages. See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926" }, { "docid": "19183403", "title": "", "text": "the “knowledgeable investor” instruction in his proposed jury charge submitted to the court for its consideration. He also requested this instruction in the jury charge conference. Upon review of the record before us, as well as of this Court’s law, we conclude that Boyce was entitled to have the jury instructed with the “knowledgeable investor” instruction: A damages award should be based upon what knowledgeable investors anticipated the future conditions and performance would be at the time of the breach. See Sharma, 916 F.2d at 826. Since it is not clear how this omission influenced the jury’s damages award, we conclude the omission was reversible error. 2. The “Wrongdoer Rule” Jury Instruction Where a party breaches a contract, that party is liable to the non-breaching party for damages and the amount of damages must put the non-breaching party in as a good a position as if the breach had not occurred. See Oscar Gruss, 337 F.3d at 196 (“damages for breach of contract should put the plaintiff in the same economic position he would have occupied had the breaching party performed the contract”). Thus, a non-breaching party “is entitled, as a matter of law, to recover market value damages to the extent that they can be proven with reasonable certainty.” Schonfeld v. Hilliard, 218 F.3d 164, 182 (2d Cir.2000). We have also instructed that where “ ‘the existence of damage is certain, and the only uncertainty is as to its amount, ... the burden of uncertainty as to the amount of damage is upon the wrongdoer.’ ” Id. (quoting Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977)). Further, in Contemporary Mission, this Court instructed that “the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. The plaintiff need only show a ‘stable foundation for a reasonable estimate,’ ” of damages to which he is entitled as a result of the breach. 557 F.2d at 926 (quoting Freund v. Wash. Square Press, Inc., 34 N.Y.2d 379, 383, 357 N.Y.S.2d 857, 861, 314 N.E.2d 419 (1974)" }, { "docid": "19183404", "title": "", "text": "occupied had the breaching party performed the contract”). Thus, a non-breaching party “is entitled, as a matter of law, to recover market value damages to the extent that they can be proven with reasonable certainty.” Schonfeld v. Hilliard, 218 F.3d 164, 182 (2d Cir.2000). We have also instructed that where “ ‘the existence of damage is certain, and the only uncertainty is as to its amount, ... the burden of uncertainty as to the amount of damage is upon the wrongdoer.’ ” Id. (quoting Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977)). Further, in Contemporary Mission, this Court instructed that “the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. The plaintiff need only show a ‘stable foundation for a reasonable estimate,’ ” of damages to which he is entitled as a result of the breach. 557 F.2d at 926 (quoting Freund v. Wash. Square Press, Inc., 34 N.Y.2d 379, 383, 357 N.Y.S.2d 857, 861, 314 N.E.2d 419 (1974) (internal citation omitted)). Relatedly, the Contemporary Mission Court also reiterated that “[ejvidence need not be conclusive in order to be relevant.” Id. at 927. Indeed, more recently we noted that “when reviewing the sufficiency of the damages evidence, we are guided by the principle that if a plaintiff has shown it more likely than not that it has suffered damages, the amount of damages need only be proved with reasonable certainty.” Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 496 (2d Cir.1995) (citing W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases)). Reaffirming the key concept that damages are meant to put a plaintiff in the same economic position he would otherwise be in but for a defendant’s breach of contract, the Indu Craft Court stated, “A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain.” Id. (quoting Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209," }, { "docid": "22920260", "title": "", "text": "and, by analogy, records. What all of these have in common is their dependence upon taste or fancy for success. When the existence of damage is uncertain or speculative, the plaintiff is limited to the recovery of nominal damages. On the other hand, if the plaintiff has given valuable consideration for the promise of performance which would have given him a chance to make a profit, the defendant should not be allowed to deprive him of that performance without compensation unless the difficulty of determining its value is extreme. Especially is this true where there is no chance of loss. 11 Williston on Contracts § 1346, at 242 (3d ed.- 1968). Thus, under the long-standing New York rule, when the existence of damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied a recovery of substantial damages. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 456 (2d Cir. 1977); W. L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir. 1967) (collecting New York cases). Moreover, the burden of uncertainty as to the amount of damage is upon the wrongdoer, Perma Research & Dev. v. Singer, supra, 542 F.2d at 116, and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247-48 (1954). The plaintiff need only show a “stable foundation for a reasonable estimate of royalties he would have earned had defendant not breached.” Freund v. Washington Square Press, Inc., supra, 34 N.Y.2d at 383, 357 N.Y.S.2d at 861, 314 N.E.2d at 421. “Such an estimate necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.” Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir. 1964). “[T]he law will make the best appraisal that it can, summoning to its service whatever aids it can command.” Sinclair Rfg. Co. v. Jenkins Co., 289 U.S. 689, 697, 53 S.Ct." }, { "docid": "14916484", "title": "", "text": "(2d Cir.1976), and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237 (1954). An estimate of damages, even when well-founded, “necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.” Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir.1964). “The law will make the best appraisal that it can, summoning to its service whatever aids it can command.” Sinclair Ref. Co. v. Jenkins Co., 289 U.S. 689, 697, 53 S.Ct. 736, 77 L.Ed. 1449 (1933). See Part IX.A (discussing pragmatic need for use of aggregate proof). In a class action demanding statistical analysis of damages, as in.any individual suit, the models presented by plaintiffs can be adopted in part, or not at all, by the jury without giving rise to a valid objection on grounds of undue speculation. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.1992) (rejecting defendant’s claim that damages award in employment discrimination case was “unduly speculative”; jury’s award of $667,000 in future lost earnings fell well within plaintiffs expert’s estimate of $915,105); New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1078 (2d Cir.1988) (“[W]e cannot accept appellants’ contention that the jury’s decision to award the State various fractions of the amounts demanded was not an equitable and reasonable one, for to do so in the circumstances here would permit defendants to profit by their wrongdoing at the expense of the person injured.”). See also Hendrickson Bros., 840 F.2d at 1077 (“Although the jury is not allowed to base its damages assessment on speculation or guesswork, it is entitled to make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly.”). In the antitrust context, the Supreme Court has approved imprecision as practicable and consonant with due process: [Damage] issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other" }, { "docid": "22920266", "title": "", "text": "that prediction, it would be free to do so. In this way, all of the evidence tending to show the probable amount of Contemporary’s damages would be placed before the jury. While it is true that the jury would be required to speculate to some degree with respect to whether “Fear No Evil” would be within any particular percentage, such is the nature of estimation. If the amount of damage were certain, no estimation would be required. But the uncertainty exists, and since it is a product of the defendant’s wrongful conduct, he will not be heard to complain of the lack of precision. Entis v. Atlantic Wire & Cable Corp., supra, 335 F.2d at 763. Because Freund does not bar proof of lost royalties and because the proffered evidence was relevant on that issue, Fed.R. Evid. 401, Judge Owen was required to admit it, Fed.R.Evid. 402, unless he found that “its probative value [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fed.R.Evid. 403. It may be, for example, that “[i]n the frame within which [they were sought to be] used . the [statistics], though relevant, became an item of prejudicial overweight.” Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 511 & n.19 (2d Cir. 1977). Similarly, it may be that if Contemporary was unprepared to offer an analysis of factors other than the bare statistics, those statistics, standing alone, would be misleading and would therefore not provide a “stable foundation for a reasonable estimate of royalties” that would have been earned if Famous had not breached. Freund v. Washington Square Press, Inc., supra, 34 N.Y.2d at 383, 357 N.Y.S.2d at 861, 314 N.E.2d at 421. Because Judge Owen did not reach these issues, and because we believe it would be inappropriate for this Court to engage in Rule 403 balancing in the first instance, the case must be remanded to the district court for the purpose of making a Rule 403 determination. The resolution of that issue will, in turn, determine whether Contemporary should be given the new" }, { "docid": "22920261", "title": "", "text": "Cir. 1967) (collecting New York cases). Moreover, the burden of uncertainty as to the amount of damage is upon the wrongdoer, Perma Research & Dev. v. Singer, supra, 542 F.2d at 116, and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247-48 (1954). The plaintiff need only show a “stable foundation for a reasonable estimate of royalties he would have earned had defendant not breached.” Freund v. Washington Square Press, Inc., supra, 34 N.Y.2d at 383, 357 N.Y.S.2d at 861, 314 N.E.2d at 421. “Such an estimate necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.” Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir. 1964). “[T]he law will make the best appraisal that it can, summoning to its service whatever aids it can command.” Sinclair Rfg. Co. v. Jenkins Co., 289 U.S. 689, 697, 53 S.Ct. 736, 739, 77 L.Ed. 1449 (1933). We are confident that under the principles enunciated above the exclusion of the evidence proffered by Contemporary was error. This is not a case in which the plaintiff sought to prove hypothetical profits from the sale of a hypothetical record at a hypothetical price in a hypothetical market. At the time of the sale to ABC, the record was real, the price was fixed, the market was buying and the record’s success, while modest, was increasing. Even after the promotional efforts ended, the the record was withdrawn from the marketplace, it was carried, as a result of its own momentum, to an additional 10,000 sales and to a rise from approximately number 80 on the “Hot Soul Singles” chart of Billboard magazine to number 61. It cannot be gainsaid that if someone had continued to promote it, and if it had not been withdrawn from the market, it would have sold more records than it actually did. Thus, it is certain that Contemporary suffered some damage in the form" }, { "docid": "17714843", "title": "", "text": "of the case at the time of trial and the arguable weaknesses in plaintiffs’ theories, any admission elicited from Stoller on the stand, or the impeachment value of his deposition testimony if no admissions were forthcoming, might well have altered the outcome of the case. In light of this conclusion, it will be necessary on remand for the district court to reconsider the application to disqualify Stoller’s firm. Dittmer raises one other objection on appeal that merits comment. Along with a variety of other attacks on the damage portion of the trial, he complains that the jury was permitted to base its award on the impermissibly speculative and flawed testimony of plaintiffs’ expert, Kenneth McGraw. Given RIF’s disastrous net losses ($2.9 million), its brief track record, and the expert’s inability to find substantially similar businesses to gauge future performance, the expert’s testimony was “nothing more than conjecture,” according to Dittmer. Appellant’s Brief at 61. We disagree. In considering the sufficiency of damage evidence, we are guided by the following well-established principles: [W]hen the existence of damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied a recovery of substantial damages. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 456 (2d Cir.1977); W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases). Moreover, the burden of uncertainty as to the amount of damage is upon the wrongdoer, Perma Research & Dev. v. Singer, supra, 542 F.2d [111] at 116 [2d Cir.1976] and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247-48 (1954). Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977). Flexibility in permitting proof of damages is particularly appropriate where, as here, it is the defendant’s allegedly wrongful conduct that frustrates more precise calculations. See Strobl v. New York Mercantile Exchange, 582 F.Supp. 770, 779 (S.D.N.Y.1984), aff'd, 768 F.2d 22 (2d" }, { "docid": "11546646", "title": "", "text": "his costs did not include the purchase of any substantial amounts of construction materials. Hailey does not dispute the accuracy of Well’s books and records on this appeal. Hailey does not bring to our attention any evidence which contradicts Mr. Wells’ testimony concerning the costs incurred by Wells under its cross-claims. Appellant bases its attack solely upon the method used by Wells to prove its damage claims and the items that were included in the claims. Hailey’s main contention is that Wells’ proof must fail because Wells did not submit an itemized statement to support each claim of damages. We are not persuaded by Hailey’s claims that Wells did not segregate charges related to various jobs in its books and accounts and that an accountant retained by Hailey to examine Wells’ books could not determine from the books how Wells’ costs should be allocated. It is well settled that once a plaintiff has proved that it is more probable than not that he has been damaged, plaintiff need only show the amount of his damages with reasonable certainty. “The rule to be applied is a flexible one, for as this court said long ago in Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264, 266: ‘[W]hen it is certain that damages have been caused by a breach of contract, and the only uncertainty is to their amount, there can rarely be good reason for refusing on account of such uncertainty any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damage which he has caused is uncertain.’ ” Randall-Smith, Inc. v. 43rd St. Estates Corp., 17 N.Y.2d 99, 105-106, 268 N.Y.S.2d 306, 312, 215 N.E.2d 494, 498 (1966). Duane Jones Company, Inc. v. Burke, 306 N.Y. 172, 117 N.E.2d 237 (1954); Steitz v. Gifford, 280 N.Y. 15, 19 N.E.2d 661, 122 A.L.R. 292 (1939); Dunkel v. McDonald, 272 App.Div. 267, 70 N.Y.S.2d 653 (1947), aff’d, 298 N.Y. 586, 81 N.E.2d 323 (1948). Accord, Story Parchment Co. v. Paterson Parchment Paper Co.," }, { "docid": "23317216", "title": "", "text": "Auth., 608 F.2d 699, 707 (6th Cir.1979). AEP seeks only what it bargained for — the amount it would have profited on the payments TEMI promised to make for the remaining years of the contract. This is most certainly a claim for general damages. B. Estimating General Damages It has long been established in New York that a breaching party is liable for all direct and proximate damages which result from the breach. Wakeman v. Wheeler & Wilson Mfg. Co., 56 Sickels 205, 209, 101 N.Y. 205, 4 N.E. 264, 266 (1886). The damages, however, “must be not merely speculative, possible, and imaginary, but they must be reasonably certain and such only as actually follow or may follow from the breach of the contract.” Id. (emphasis added). “Certainty,” as it pertains to general damages, refers to the fact of damage, not the amount. For “when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damage which he has caused is uncertain.” Id. “[T]he burden of uncertainty as to the amount of damage is upon the wrongdoer ....” Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977) (applying New York law). “The plaintiff need only show a ‘stable foundation for a reasonable estimate’ ” of the damage incurred as a result of the breach. Id. (quoting Freund v. Washington Square Press, Inc., 34 N.Y.2d 379, 383, 357 N.Y.S.2d 857, 314 N.E.2d 419 (1974)). “Such an estimate necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.” Entis v. Atl. Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir.1964). While certainty of amount is not an element of general damages in New York, it is an element of consequential damages. In addition to proving that the existence of damage" }, { "docid": "2176342", "title": "", "text": "more likely than not that it has suffered damages, the amount of damages need only be proved with reasonable certainty. See W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases). New York has long had an established rule that: [Wjhen it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264 (1886); see Randall-Smith, Inc. v. 43rd St. Estates Corp., 17 N.Y.2d 99, 105-06, 268 N.Y.S.2d 306, 215 N.E.2d 494 (1966). The wrongdoer must shoulder the burden of the uncertainty regarding the amount of damages. See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977). Indu Craft’s proof of value of its business as a going concern was adequate to meet these tests for sufficiency. After expressly finding that plaintiffs proof of lost value was sufficient, we are at a loss as to why the trial court then set aside the jury award. The jury’s special verdict sheet made no distinction between the two methods of proving damages, and the figures were well within the range testified to by plaintiffs expert who set a low value of $3.3 million and a mid-range of $4.3 million. The jury found that Indu Craft was damaged in a total amount of $4.25 million, less $1 million for a failure to mitigate, for net total damages of $3.25 million. Had lost profits evidence not been presented, evidence of the lost value of Indu Craft as a going enterprise, standing alone, would have been sufficient to support the jury’s award of damages. Hence, the judgment as a matter of law with respect to the contract claim must be reversed and the jury award" }, { "docid": "22920259", "title": "", "text": "419 (1974). There can no dispute that Contemporary “is entitled to the reasonable damage flowing from the breach of” the VIRGIN agreement by Famous, and that “the measure of the damage is the amount necessary to put [Contemporary] in [the] exact position as [it] would have been if the contract had not been breached.” Perma Research & Dev. v. Singer Co., 542 F.2d 111, 116 (2d Cir.), cert. denied, 429 U.S. 987, 97 S.Ct. 507, 50 L.Ed.2d 598 (1976). Nor can there be any dispute as to the New York rules concerning the measure of proof required to prove the existence of damage and the measure of proof necessary to enable the jury to fix its amount. It is clear that the existence of damage must be certain—a requirement that operates with particular severity in cases involving artistic creations such as books, Freund v. Washington Square Press, Inc., supra, movies, Broadway Photoplay Co. v. World Film Corp., 225 N.Y. 104, 121 N.E. 756 (1919), plays, Bernstein v. Meech, 130 N.Y. 354, 29 N.E. 255 (1891), and, by analogy, records. What all of these have in common is their dependence upon taste or fancy for success. When the existence of damage is uncertain or speculative, the plaintiff is limited to the recovery of nominal damages. On the other hand, if the plaintiff has given valuable consideration for the promise of performance which would have given him a chance to make a profit, the defendant should not be allowed to deprive him of that performance without compensation unless the difficulty of determining its value is extreme. Especially is this true where there is no chance of loss. 11 Williston on Contracts § 1346, at 242 (3d ed.- 1968). Thus, under the long-standing New York rule, when the existence of damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied a recovery of substantial damages. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 456 (2d Cir. 1977); W. L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d" }, { "docid": "2051040", "title": "", "text": "barrels; in 1975 they sold 90,-102 barrels; and in 1976 they sold only 32,152 barrels. It was stipulated that in 1977 Munich Beer sales amounted to only 17,063 barrels. No Munich sales were registered in 1978. There was testimony of lost sales to the Dart Drug Store chain in Washington, D. C., but no proof as to the amount. (Tr. p. 386.) At most, in view of the lack of evidence, defendant is entitled to credit for the lost sales of Munich in the first quarter of 1978. Applying the same principles used above, lost Munich sales for that period would have been 3,469 barrels, reducing the lost royalties by $1,734.50. Accordingly, the damages for Falstaff’s breach amount to $628,528.10. These damages are reasonable under all the circumstances presented here. As our Court of Appeals stated in Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926-27 (2d Cir. 1977): “[T]he burden of uncertainty as to the amount of damages is upon the wrongdoer, Perma Research & Dev. v. Singer, supra, 542 F.2d at 116, and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247-48 (1954). The plaintiff need only show a ‘stable foundation for a reasonable estimate of royalties he would have earned had defendant not breached.’ Freund v. Washington Square Press, Inc., supra, 34 N.Y.2d at 383, 357 N.Y.S.2d at 861, 314 N.E.2d at 421. ‘Such an estimate necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.’ Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir. 1964). ‘[T]he law will make the best appraisal that it can, summoning to its service whatever aids it can command.’ Sinclair Ring. Co. v. Jenkins Co., 289 U.S. 689, 697, 53 S.Ct. 736, 739, 77 L.Ed. 1449 (1933).” Underpaid Royalties. It is undisputed that between April 1, 1972 and November 30, 1975 Falstaff sold 5,108,908 barrels of Ballantine products, on which a royalty" }, { "docid": "22920258", "title": "", "text": "that Famous is vicariously liable for a breach by ABC, because if the assignment was void, ABC had no obligation which could have been breached. This argument is without merit because it is premised upon the mistaken notion that Famous is being held liable for a breach by ABC. Such is not the case. The basis for the recovery is not a breach by ABC, it is a breach by Famous after the sale to ABC. IV. The Cross-Appeal. During the trial, Contemporary sought to introduce a statistical analysis, together with expert testimony, in order to prove how successful the most successful of its single recordings, “Fear No Evil,” would have become if the VIRGIN agreement had not been breached as a result of the sale to ABC. Based upon its projection of the success of that recording, Contemporary hoped to prove what revenues that success would have produced. Judge Owen excluded this evidence on the ground that it was speculative. Freund v. Washington Square Press, Inc., 34 N.Y.2d 379, 357 N.Y.S.2d 857, 314 N.E.2d 419 (1974). There can no dispute that Contemporary “is entitled to the reasonable damage flowing from the breach of” the VIRGIN agreement by Famous, and that “the measure of the damage is the amount necessary to put [Contemporary] in [the] exact position as [it] would have been if the contract had not been breached.” Perma Research & Dev. v. Singer Co., 542 F.2d 111, 116 (2d Cir.), cert. denied, 429 U.S. 987, 97 S.Ct. 507, 50 L.Ed.2d 598 (1976). Nor can there be any dispute as to the New York rules concerning the measure of proof required to prove the existence of damage and the measure of proof necessary to enable the jury to fix its amount. It is clear that the existence of damage must be certain—a requirement that operates with particular severity in cases involving artistic creations such as books, Freund v. Washington Square Press, Inc., supra, movies, Broadway Photoplay Co. v. World Film Corp., 225 N.Y. 104, 121 N.E. 756 (1919), plays, Bernstein v. Meech, 130 N.Y. 354, 29 N.E. 255 (1891)," }, { "docid": "19183405", "title": "", "text": "(internal citation omitted)). Relatedly, the Contemporary Mission Court also reiterated that “[ejvidence need not be conclusive in order to be relevant.” Id. at 927. Indeed, more recently we noted that “when reviewing the sufficiency of the damages evidence, we are guided by the principle that if a plaintiff has shown it more likely than not that it has suffered damages, the amount of damages need only be proved with reasonable certainty.” Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 496 (2d Cir.1995) (citing W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases)). Reaffirming the key concept that damages are meant to put a plaintiff in the same economic position he would otherwise be in but for a defendant’s breach of contract, the Indu Craft Court stated, “A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain.” Id. (quoting Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264 (1886)). Thus, “[t]he wrongdoer must shoulder the burden of the uncertainty regarding the amount of damages.” Id. (citing Contemporary Mission, 557 F.2d at 926). Given this landscape of case law, we must conclude that, here, the district court’s instruction to the jury on the “wrongdoer rule” was erroneous. First, the district court’s characterization of the “wrongdoer rule” as “disliked” improperly framed the rule in a negative light. Having reviewed the “wrongdoer rule” instruction the district court judge delivered, we are concerned that the judge’s “disliked” characterization implicitly discouraged the jury’s application of it. Further, since it is not clear that this negative characterization of the rule did not give a misleading impression of the law and, in turn, did not influence the jury’s damages award, we will not conclude that it was harmless. Second, we find the “wrongdoer rule” instruction delivered in this case confused the law; the court instructed the jury that the rule requires a shifting of burden from the plaintiff to defendant when no such shift is required. Simply" }, { "docid": "14916482", "title": "", "text": "Benowitz, “Compensatory Smoking of Low-Yield Cigarettes,” in Monograph 13 (in portion of chapter not appearing in Appendix E, surveying studies showing cigarette consumption increases with switch to lower yield cigarettes). If necessary, additional time would be permitted to develop out of pocket losses for trial. b. Degree of precision required Defendants attack plaintiffs’ theory of damages as speculative. Benefit of the bargain damages are always somewhat imprecise. As noted in the antitrust context, they require a court or jury to determine what would have happened were it not for the defendant’s misconduct. See Kendrick at 940, quoted in Craft at *8 (“[Djamages under th[e benefit of the bargain] rule, in terms of determining the ‘as represented’ value, are deemed somewhat speculative. Although that has historically been the chief criticism of those who dislike the rule, the difficulty of proof is no greater than in warranty cases where the same rule applies .... ”). That defendants have allegedly fraudulently marketed a good without readily determinable value “as represented” does not justify dismissal. “The fact that the property sold was of such a character as to make it difficult to ascertain with exactness what its value would have been if it had [been as represented] affords no reason for exempting the defendant from any part of the direct consequences of his fraud.” Kendrick at 940. Where injury is established, damages need not be demonstrated with precision. Under the long-standing — and typical — New York rule, when the existence of damage has been established, and the only uncertainty is as to its amount, the plaintiff will not be denied a recovery of substantial damages. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 456 (2d Cir.1977); W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases). See also Blue Cross, Appendix B at Part XII, supra (rejecting a similar challenge to sufficiency of plaintiffs’ proof of damages). The risk of uncertainty as to the amount of damage is upon the wrongdoer, Perma Research & Development v. Singer, 542 F.2d 111, 116" }, { "docid": "2051041", "title": "", "text": "116, and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247-48 (1954). The plaintiff need only show a ‘stable foundation for a reasonable estimate of royalties he would have earned had defendant not breached.’ Freund v. Washington Square Press, Inc., supra, 34 N.Y.2d at 383, 357 N.Y.S.2d at 861, 314 N.E.2d at 421. ‘Such an estimate necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.’ Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir. 1964). ‘[T]he law will make the best appraisal that it can, summoning to its service whatever aids it can command.’ Sinclair Ring. Co. v. Jenkins Co., 289 U.S. 689, 697, 53 S.Ct. 736, 739, 77 L.Ed. 1449 (1933).” Underpaid Royalties. It is undisputed that between April 1, 1972 and November 30, 1975 Falstaff sold 5,108,908 barrels of Ballantine products, on which a royalty of $2,554,454.00 was due. It has been stipulated that during that period Falstaff paid to Ballantine only $2,513,054.50. The underpaid royalties due' for that period thus amount to $41,399.50. Withhold Royalties. Plaintiff is also entitled to receive its $.50 per barrel royalty on all sales of Ballantine products after November 30, 1975. These were unjustifiably withheld by Falstaff in anticipation of its counterclaims against Ballantine, all of which have been found lacking in merit. In the period from December 1, 1975 to December 31,1977, Falstaff sold 1,159,241 barrels of Ballantine products, and the royalty due is $579,620.50. Using the method described above, Falstaff would have sold 105,525 barrels of Ballantine products (30% of Ballantine’s 1974 volume) during the first quarter of 1978. The royalties due for this period amount to $52,762.50. The sum total due to Baleo is thus $1,302,310.60. Pre-judgment interest at 6% per annum is awarded, with the computation to be made in accordance with New York CPLR § 5001(b), with costs to be taxed. Settle a judgment on waiver of notice, or" }, { "docid": "23317217", "title": "", "text": "on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damage which he has caused is uncertain.” Id. “[T]he burden of uncertainty as to the amount of damage is upon the wrongdoer ....” Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977) (applying New York law). “The plaintiff need only show a ‘stable foundation for a reasonable estimate’ ” of the damage incurred as a result of the breach. Id. (quoting Freund v. Washington Square Press, Inc., 34 N.Y.2d 379, 383, 357 N.Y.S.2d 857, 314 N.E.2d 419 (1974)). “Such an estimate necessarily requires some improvisation, and the party who has caused the loss may not insist on theoretical perfection.” Entis v. Atl. Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir.1964). While certainty of amount is not an element of general damages in New York, it is an element of consequential damages. In addition to proving that the existence of damage is reasonably certain, and that the damages were foreseeable and within the contemplation of both parties, a party claiming consequential damages must also prove the amount of damage with “reasonable certainty.” Kenford, 67 N.Y.2d at 261, 502 N.Y.S.2d 131, 493 N.E.2d 234. Thus, there exists a higher burden for proving consequential damages than for general damages. This is the burden that the district court erroneously imposed on AEP. The district court erred in requiring AEP to prove the extent of its damages to a reasonable certainty. The law of New York is clear that once the fact of damage is established, the non-breaching party need only provide a “stable foundation for a reasonable estimate [of damages]” before an award of general damages can be made. Freund, 34 N.Y.2d at 383, 357 N.Y.S.2d 857, 314 N.E.2d 419. The district court noted that “it is inherently speculative” to determine AEP’s loss over the twenty-year period, and that the method offered for determining AEP’s loss “required a large number of assumptions.” Tractebel, 2005 WL 1863853, at *16, 2005" }, { "docid": "17714844", "title": "", "text": "damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied a recovery of substantial damages. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 456 (2d Cir.1977); W.L. Hailey & Co. v. County of Niagara, 388 F.2d 746, 753 (2d Cir.1967) (collecting New York cases). Moreover, the burden of uncertainty as to the amount of damage is upon the wrongdoer, Perma Research & Dev. v. Singer, supra, 542 F.2d [111] at 116 [2d Cir.1976] and the test for admissibility of evidence concerning prospective damages is whether the evidence has any tendency to show their probable amount. Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247-48 (1954). Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977). Flexibility in permitting proof of damages is particularly appropriate where, as here, it is the defendant’s allegedly wrongful conduct that frustrates more precise calculations. See Strobl v. New York Mercantile Exchange, 582 F.Supp. 770, 779 (S.D.N.Y.1984), aff'd, 768 F.2d 22 (2d Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 527, 88 L.Ed.2d 459 (1985); Sarlie v. E.L. Bruce Co., 265 F.Supp. 371, 375-76 (S.D.N.Y.1967). With regard to the initial question of whether plaintiffs proved the fact of damages, we reject outright the suggestion in Dittmer’s papers that a business with no history of profits is necessarily valueless. See Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556 (2d Cir.1970). McGraw’s projections were, on balance, sufficiently sound with respect to the fact of damages. The record reveals that he carefully laid out the factors that influenced his projections. As a general matter, he observed that the commodities business, while often involving complex transactions, is relatively simple and susceptible to fairly reliable projections of future performance. He studied the partnership’s financial statements including, of course, those of the subsidiary corporations; he studied the development and growth of the partnership’s business as well as trends in the securities and commodities industry generally; and he studied prices paid for companies in the financial services area. Of principal importance, he noted that" } ]

[ { "docid": "6459767", "title": "", "text": "the third ground raised. The State appeals. II. We first consider whether Santana exhausted his state remedies as required by 28 U.S.C. § 2254(b) (1976), with respect to his claim that the trial court’s refusal to reopen the case denied him his constitutional right to testify. In Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that if a habeas petition contains both unexhausted and exhausted claims, the entire petition must be dismissed for failure to comply with section 2254(b). Thus, we may not consider the merits of any of Santana’s arguments unless we conclude that he has exhausted his state remedies with respect to each claim. See Slotnick v. O’Lone, 683 F.2d 60 (3d Cir. 1982). In Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982) (per curiam), this court held that a habeas petitioner “bear[s] the burden of demonstrating that he has met the procedural requisites that entitle him to relief.” Accordingly, Santana must demonstrate that he “has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect” his rights. 28 U.S.C. § 2254(b). We proceed to consider whether Santana has met his burden with respect to the right-to-testify claim. A. To demonstrate compliance with the exhaustion requirement, a habeas applicant must show that the federal claim he asserts in federal court has been “fairly presented” to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). We have emphasized that “it is not enough that the petitioner presents to the state court the facts upon which a federal claim is based.” Brown, 669 at 158. The argument raised in federal court must be the “substantial equivalent” of that presented to the state courts, Picard at 277-78, 92 S.Ct. at 513, to insure that the “method of analysis” was “readily available to the state court.” Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976) (in banc). We" } ]

[ { "docid": "12001169", "title": "", "text": "the dangers of penalizing a habeas petitioner for any deficiencies in his marshalling of cases in the difficult area of constitutional criminal procedure. Nonetheless, we do not believe this is an instance in which the issues presented to the state court and the issues raised in Brown’s petition involved the same “ultimate question for disposition . . . despite variations in the legal theory or factual allegations.” Picard, 404 U.S. at 277, 92 S.Ct. at 513. After a careful examination of his briefs, we are not persuaded that the petitioner has met his burden of demonstrating that he had presented the waiver issue so that “the state court [could] be informed of the legal basis for the claim.” Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979). At most, petitioner presented to the state court the facts on which he bases his Miranda waiver claim. We do not believe this satisfies his burden. See Picard, 404 U.S. at 277, 92 S.Ct. at 513 (dismissing habeas petition because “the constitutional claim . . . inherent in those facts [presented to the state court] was never brought to the attention of the state courts”). Petitioner’s reliance on cases applying the pre-Miranda due process standard of voluntariness, his emphasis on the theory of psychological coercion, and his failure to bring any case law to the attention of the state court relating to his waiver argument, cast serious doubt on his claim that he presented a “substantially equivalent” argument to the state court. Thus, we cannot say that he has demonstrated that the “method of analysis” he now advances was “readily available to the state court.” Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir. 1976) (en banc). Finally, Brown does not allege “either an absence of available state corrective process or the existence of circumstances rendering such process ineffective” to protect his rights. 28 U.S.C. § 2254 (1976). We note that the Pennsylvania Post-Conviction Hearing Act, 19 Pa.Stat. §§ 1180-1—1180-13 (1978) would provide petitioner an adequate opportunity to vindicate his newly raised federal claim in a state forum. Indeed, the attorney for" }, { "docid": "10463379", "title": "", "text": "do not reach out unnecessarily to decide other issues. None of this, is to say that a criminal defendant must cite “book and verse on the federal constitution” to the state court. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971), (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)). He must, however, make clear to the state court that he is asking that court to adjudicate a federal constitutional claim of some sort, or at least make clear that he is asking for adjudication of a state law claim which is the substantial equivalent of a federal constitutional claim. Since the petitioner failed to present his federal claims to the state court, and since at least one of his federal claims is not substantially equivalent to the claim advanced in state court, he has failed to exhaust his state remedies. Petitioner has not suggested any reason why the courts of New Jersey should not be permitted to pass on his federal claims before this federal court intervenes. It may be unlikely that the state court will grant relief on a federal claim where it did not grant relief on an apparently broader state claim, but it is not clear that the claims are so similar that presentation to the state courts would be futile. Accordingly, the petition for a writ of habeas corpus is dismissed. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). . Petitioner has not made any claim in this court that is in any way connected to this latter argument. Therefore, the court will concentrate on the former argument. . There are, of course, exceptions. For example, a court of limited jurisdiction should always question its own subject matter jurisdiction. Similarly, it is proper for a court to raise the issue of exhaustion sua sponte. Brown v. Fauver, 819 F.2d 395, 398 (3d Cir. 1987). . In this court’s view, it would be more analytically sound to say that a petitioner who raised a state law claim in state court and a federal law" }, { "docid": "10463378", "title": "", "text": "requirements are simply different. Moreover, this court has located no decision of the Third Circuit Court of Appeals commenting on the Daye analysis. Absent controlling authority to the contrary, this court is unwilling to assume that state judges considered claims not raised — and proceeded to decide them without acknowledging that they were do-.. ing so — simply because the federal claim is within the mainstream of federal constitutional litigation. This court has no doubt that the judges in the New Jersey court system, if they were defense counsel in petitioner’s case, would have realized that there was a federal claim that could have been made along with the state claim. A judge, however, is not an advocate. While a judge should act to prevent manifest injustice in the cases before him, he is not on the bench to decide every issue which occurs to him in the course of a case. It shows no disrespect at all for this court to assume that state court judges only decide the issues presented for adjudication and do not reach out unnecessarily to decide other issues. None of this, is to say that a criminal defendant must cite “book and verse on the federal constitution” to the state court. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971), (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)). He must, however, make clear to the state court that he is asking that court to adjudicate a federal constitutional claim of some sort, or at least make clear that he is asking for adjudication of a state law claim which is the substantial equivalent of a federal constitutional claim. Since the petitioner failed to present his federal claims to the state court, and since at least one of his federal claims is not substantially equivalent to the claim advanced in state court, he has failed to exhaust his state remedies. Petitioner has not suggested any reason why the courts of New Jersey should not be permitted to pass on his federal claims before this federal court intervenes." }, { "docid": "23686375", "title": "", "text": "that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. O’Halloran v. Ryan, 835 F.2d 506, 509 (3d Cir.1987). The general principles covering the responsibility of the petitioner to exhaust all federal claims are now fairly well established. The exhaustion requirement is satisfied when the state courts have had an opportunity to pass upon and correct alleged constitutional violations. A claim must be presented not only to the trial court but also to the state’s intermediate court as well as to its supreme court. A claim is not deemed exhausted if it is raised for the first time in the state’s highest court on discretionary review. Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). However, a petitioner who has raised the claim on direct appeal need not raise it again in a state post-conviction proceeding. Swanger v. Zimmermann, 750 F.2d 291, 295 (3d Cir.1984). Of particular significance to the issue before us is whether the federal claim has been “fairly presented” to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). Both the legal theory and the facts underpinning the federal claim must have been presented to the state courts, Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986), and the same method of legal analysis must be available to the state court as will be employed in the federal court, Santana, 685 F.2d at 74. Exhaustion is not a jurisdictional requirement, but rather a rule of comity, and a federal court may in certain circumstances decide the merits of a claim despite non-exhaustion. If the “petitioner has no opportunity to obtain redress in the state court or the state corrective process is so deficient as to" }, { "docid": "23686376", "title": "", "text": "whether the federal claim has been “fairly presented” to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). Both the legal theory and the facts underpinning the federal claim must have been presented to the state courts, Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986), and the same method of legal analysis must be available to the state court as will be employed in the federal court, Santana, 685 F.2d at 74. Exhaustion is not a jurisdictional requirement, but rather a rule of comity, and a federal court may in certain circumstances decide the merits of a claim despite non-exhaustion. If the “petitioner has no opportunity to obtain redress in the state court or the state corrective process is so deficient as to render any effort to obtain relief futile,” exhaustion is not required. Gibson, 805 F.2d at 138. In addition, a district court may deny a claim on its merits despite non-exhaustion “if it is perfectly clear that the applicant does not raise even a colorable federal claim.” Granberry v. Greer, 481 U.S. 129, 135, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987). B. Application 1. Fair Presentation It is undisputed that in state court, Evans’s challenge to the sufficiency of the evidence to support her third-degree murder conviction was never expressed as a federal due process violation until Evans so alleged, for the first time, in her petition for allocatur to the Pennsylvania Supreme Court. Pennsylvania courts addressing insufficiency of evidence claims generally ground their decisions in state law if the appellant has not argued that federal due process is implicated. Although at least one Pennsylvania Superior Court decision involving an insufficiency of evidence claim cited federal precedent, see Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244, 1246 (1983) (citing Jackson v. Virginia, 443 U.S." }, { "docid": "17052224", "title": "", "text": "substance of the claim asserted in state court must be indistinguishable from the claim asserted in the federal court. See Bisaccia v. Attorney General of State of New Jersey, 623 F.2d 307, 312 (3d Cir.1980), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980) (because substance of due process claim presented to state court was “virtually indistinguishable” from federal claim, Picard test for exhaustion met); see also Zicarelli, supra (sixth amendment claim based on venue is not equivalent to sixth amendment claim based on fair cross-section analysis). Third, the petitioner must have presented to the state courts both the legal theory and the facts on which the legal claim rests. Gibson, supra. Compare Chaussard v. Fulcomer, 816 F.2d 925, 928-29 (3d Cir.1987), cert. denied, 484 U.S. 845, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987) (argument section in petitioner’s brief in state Supreme Court proceeding, which relied on federal constitutional cases and asserted that prosecutor’s knowing use of perjured testimony violated fourteenth amendment and due process clause, fairly presented federal claim to state courts) with Zicarelli, supra, at 474 (mere reference by defendant’s counsel to an opinion containing a constitutional claim did not fairly present sixth amendment cross-section issue to the state courts). In this case, an order of this court has enabled Landano to discover and present facts not heretofore available to him. A failure to make every factual argument in state court to support a federal claim does not constitute a failure to exhaust. See Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir.1984) ; see also Bright v. Williams, 817 F.2d 1562, 1565 (11th Cir. 1987) (once petitioner places legal theory and supporting facts before state court, he is not precluded from raising additional facts in support of claim in federal habeas petition, citing Patterson); Zicarelli, supra, at 474, n. 31 (“[w]ithin the contours of a particular argument ... not every detail need have been put before the state court in order to present all facets of the argument to the federal court on a petition for habeas”) (citation omitted). This court must determine whether" }, { "docid": "14998366", "title": "", "text": "See Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (“Obviously there are instances in which the ultimate question for disposition will be the same despite variations in the legal theory or factual allegations urged in its support.... We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.”) (internal citations and quotation marks omitted); Verdin, 972 F.2d at 1474. “[Mjere variations in the same claim rather than a different legal theory will not preclude exhaustion.” Wilks v. Israel, 627 F.2d 32, 38 (7th Cir.1980) (citing Macon v. Lash, 458 F.2d 942, 948 (7th Cir.1972)). However, a petitioner’s reformulation of his claim should not place the claim in a significantly different legal posture by making the claim stronger or more substantial. See Demarest v. Price, 130 F.3d 922, 932 & 939 (10th Cir.1997). Given these principles, we believe Mr. Boyko’s ineffective assistance of counsel claim has been exhausted, even though Mr. Boyko did not base his arguments in the state court on trial counsel’s failure to obtain the transcript. The situation presented in this case is not one in which a petitioner seeks to present a ground of ineffectiveness that is entirely independent of the grounds presented in the state courts. Mr. Boyko argued throughout his postconviction proceedings that his trial counsel should have pursued self-defense and PTSD theories. He raises these same claims in his federal habeas petition. The transcript does not change the substance of these arguments; instead, it merely supplies an additional piece of evidence that counsel would have found had he pursued self-defense or PTSD theories. In ruling on Mr. Boyko’s habeas petition, the federal courts must resolve the same question that the state courts were asked to resolve, namely whether Mr. Boyko’s trial counsel was ineffective in failing to pursue self-defense or PTSD theories. See Lanigan v. Maloney, 853 F.2d 40, 44-45 (1st Cir.1988) (holding that a habeas petitioner’s claims had been exhausted, even though the petitioner reformulated his claim in federal court by “add[ing] detail” because the petitioner’s “claim to" }, { "docid": "5917964", "title": "", "text": "certification, it is clear that claims two through seven of the instant petition have been exhausted. However, respondent argues that petitioner’s double jeopardy claim has not been previously addressed in the state courts. Respondent concedes that the petitioner has previously objected to the sentence imposed by the trial court. However, in his briefs submitted to the Appellate Division and Supreme Court, petitioner grounded these objections solely upon the tenets of New Jersey law. These briefs cite no federal case law in support of these contentions, nor do they make even passing reference to the federal Constitution’s Double Jeopardy Clause. The state argues that since the state courts have not been presented with the opportunity to pass upon these claims, the instant petition should be dismissed under the mixed-petition rule espoused in Rose v. Lundy. I disagree. In order for a federal habeas claim to be exhausted, the state’s highest court must have had a “fair opportunity to apply controlling legal principles to the facts bearing on [the] constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971)). As long as the state courts were provided the opportunity to rule upon a claim, their failure to explicitly do so will not affect the exhaustion analysis. See Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed.2d 582 (1978). In providing the state courts with such an opportunity, petitioner need not “cite book and verse on the federal constitution”; however, he must present the state courts with the “substantial equivalent” of his federal claims. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971); see also Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). This requirement is satisfied only when the state courts have been exposed to the relevant facts and controlling legal principles set forth in the federal petition for habeas corpus. See Gibson v. Scheidemantel, 805" }, { "docid": "17052223", "title": "", "text": "1203. Although the rule is one of careful discretion rather than of jurisdiction, see, e.g., Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989), the Third Circuit has instructed that it “is not a mere formality.” Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986). The Supreme Court and the Third Circuit have set forth the following standards to guide the determination of whether a habeas petitioner has satisfied the exhaustion requirement. In Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971), the Supreme Court stated that once the “substance” of the federal claim has been “fairly presented” to the state courts, the exhaustion requirement is satisfied. Subsequent Third Circuit decisions have further delineated the “fair presentation” requirement. First, the “method of analysis” asserted in the federal court must have been “readily available to the state court.”, Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc) (quoting Stanley v. Illinois, 405 U.S. 645, 658 n. 10, 92 S.Ct. 1208, 1216 n. 10, 31 L.Ed.2d 551). Second, the substance of the claim asserted in state court must be indistinguishable from the claim asserted in the federal court. See Bisaccia v. Attorney General of State of New Jersey, 623 F.2d 307, 312 (3d Cir.1980), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980) (because substance of due process claim presented to state court was “virtually indistinguishable” from federal claim, Picard test for exhaustion met); see also Zicarelli, supra (sixth amendment claim based on venue is not equivalent to sixth amendment claim based on fair cross-section analysis). Third, the petitioner must have presented to the state courts both the legal theory and the facts on which the legal claim rests. Gibson, supra. Compare Chaussard v. Fulcomer, 816 F.2d 925, 928-29 (3d Cir.1987), cert. denied, 484 U.S. 845, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987) (argument section in petitioner’s brief in state Supreme Court proceeding, which relied on federal constitutional cases and asserted that prosecutor’s knowing use of perjured testimony violated fourteenth amendment and due process clause, fairly presented federal claim to state" }, { "docid": "12001156", "title": "", "text": "state prisoner’s petition for habeas corpus “unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254 (1976). The requirement is not jurisdictional, but is rooted in the policy of federal-state comity. See, e.g. United States ex rel. Speaks v. Brierley, 417 F.2d 597, 600 (3d Cir. 1969), cert. denied, 397 U.S. 1051, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970). It represents “an accommodation of our federal system designed to give the State the initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (per curiam) (quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963)). In Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the United States Supreme Court emphasized that “it is not sufficient merely that the federal habeas applicant has been through the state courts.” Id. at 275, 92 S.Ct. at 512. Rather, the “federal claim must be fairly presented” to the state tribunal. In Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (in banc), we stated: “[T]he argument brought before the federal court must be the ‘substantial equivalent’ of a claim al ready presented to the state courts; ‘the substance of’ the claim raised in the federal court must first have been submitted to the state court.” Id. at 472 (quoting Picard, 404 U.S. at 277-78, 92 S.Ct. at 513). Moreover, it is not enough that the petitioner presents to the state court the facts upon which a federal claim is based. See Picard, 404 U.S. at 277, 92 S.Ct. at 513; Paullett v. Howard, 634 F.2d 117, 119 (3d Cir. 1980) (per curiam). A federal habeas corpus petitioner has the burden of proving all facts entitling him to a discharge from custody. See, e.g., Goins v. Brierley, 464 F.2d 947, 949 (3d Cir. 1972). Although this burden is applicable to the substantive elements of a petitioner’s claim, we see no reason why" }, { "docid": "3383970", "title": "", "text": "patients’ feet in order to qualify for reimbursement under the Code. The New York State Attorney General (Attorney General or respondent) contends, among other things, that appellant is barred from raising this argument in federal court on habeas review collateral to her conviction because she failed to present it to the State courts on direct appeal from her conviction. A. The Exhaustion Requirement Supreme Court precedent requires that “a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citing Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886)); accord Dorsey, 112 F.3d at 52; Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir.1982) (in banc). This requirement, which derives ultimately from notions of comity between the federal and State judicial systems, is also codified by statute at 28 U.S.C. § 2254(b) and (c). See Dorsey, 112 F.3d at 52; Daye, 696 F.2d at 190-91. To satisfy the exhaustion requirement with respect to a particular legal claim, the petitioner must fairly present it to the State courts in order that our sister judicial system may have a fair opportunity to consider the claim and correct any asserted constitutional defect in petitioner’s conviction before recourse is sought in the federal courts. See Picard, 404 U.S. at 275-76, 92 S.Ct. 509; Dorsey, 112 F.3d at 52. A federal constitutional claim has not been fairly presented to the State courts unless the petitioner has informed those courts of “all of the essential factual allegations” and “essentially the same legal doctrine he asserts in his federal petition.” Daye, 696 F.2d at 191-92 (citing, inter alia, Picard, 404 U.S. at 276-77, 92 S.Ct. 509). In other words, the claims presented by the petitioner to the State appellate courts must be the “substantial equivalent” of the claims he raises in the federal habeas petition. Picard, 404 U.S. at 278, 92 S.Ct. 509. In this context, a petitioner’s presentation of the federal constitutional claim may assume any one" }, { "docid": "22318123", "title": "", "text": "U.S. at 276, 92 S.Ct. at 512; United States ex rel. Cleveland v. Casscles, 479 F.2d 15, 19-20 (2d Cir.1973); United States ex rel. Rogers v. La Vallee, 463 F.2d 185 (2d Cir.1972); United States ex rel. Boodie v. Herold, 349 F.2d 372, 374 (2d Cir.1965). Likewise, the petitioner must have placed before the state court essentially the same legal doctrine he asserts in his federal petition. See, e.g., Picard v. Connor, supra; Callahan v. Le Fevre, 605 F.2d 70, 72 (2d Cir.1979); Wilson v. Fogg, 571 F.2d 91, 92-93 (2d Cir.1978); Fielding v. Le Fevre, 548 F.2d 1102, 1107 (2d Cir.1977). The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court. B. Presentation of Legal Basis The difficult question in many cases, including the present one, is whether the legal doctrines asserted in state and federal courts are substantially the same. Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts. A defendant may, however, fairly present the substance of a federal constitutional claim to the state court without citing “ ‘book and verse on the federal constitution.’ ” Picard v. Connor, supra, 404 U.S. at 278, 92 S.Ct. at 513 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)). The requirement that the state court have been given a reasonable opportunity to pass on the federal habeas claim is satisfied if the legal basis of the claim made in state court was the “substantial equivalent” of that of the habeas claim. Picard v. Connor, supra, 404 U.S. at 278, 92 S.Ct. at 513; see also Ulster County Court v. Allen, 442 U.S. 140, 147-48 n.5, 99 S.Ct. 2213, 2217-20 n.5, 60 L.Ed.2d 777 (1979); Callahan v. Le Fevre, supra, 605 F.2d at 73-74; Fielding v. Le Fevre, supra, 548 F.2d at 1107; United States ex rel. Gibbs v. Zelker," }, { "docid": "13473903", "title": "", "text": "The government further asserts that because Bond’s own procedural default prevented state court review, the proper avenue of recourse is pursuant to the state Post-Conviction Relief Act. The real issue here is not whether exhaustion is excused but, rather, whether the district court erred in finding that Bond had not fulfilled the exhaustion requirement of § 2254. Questions of exhaustion are governed by various considerations which, as this case demonstrates, seem facially inconsistent but are substantively compatible. First, it is well established that exhaustion is not a jurisdictional requirement. Its exercise relies upon interests of comity between the state and federal systems. Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, — U.S. —, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987), we held that the exhaustion requirement of 28 U.S.C. § 2254 has been judicially interpreted to mean that claims must have been fairly presented to the highest state court tribunal. Accord Keller v. Petsock, 853 F.2d 1122 (3d Cir.1988). “Fairly presented” means that the claim must be substantially equivalent to that litigated in the state court. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). Both the legal theory and the facts supporting a federal claim must have been submitted to the state court. O’Halloran v. Ryan, 835 F.2d 506 (3d Cir.1987), citing Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir.1986). Despite the strong preference to afford state courts the first opportunity to adjudicate the claims of its prisoners, the highest state court, however, need not have ruled on the merits of the claims for them to have been sufficiently presented for purposes of exhaustion. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir.1984); Mayberry v. Petsock, 821 F.2d 179, 184 n. 2 (3d Cir.), cert. denied, — U.S. —, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987). This dichotomy of interests is exemplified in the issue before us: does presentment of an untimely petition to the state’s highest court represent substantial compliance with the strong preference for state appellate" }, { "docid": "5917965", "title": "", "text": "6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971)). As long as the state courts were provided the opportunity to rule upon a claim, their failure to explicitly do so will not affect the exhaustion analysis. See Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed.2d 582 (1978). In providing the state courts with such an opportunity, petitioner need not “cite book and verse on the federal constitution”; however, he must present the state courts with the “substantial equivalent” of his federal claims. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971); see also Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). This requirement is satisfied only when the state courts have been exposed to the relevant facts and controlling legal principles set forth in the federal petition for habeas corpus. See Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986); Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc). There is no question that the facts alleged in support of the instant petition are identical to those previously presented before the New Jersey courts. Moreover, I conclude that the federal constitutional dimension of petitioner’s double jeopardy claim was adequately presented to the state courts. In his various appeals before the New Jersey courts, petitioner’s sentencing objections were expressly grounded upon state law. However, a review of the ease law cited by petitioner reveals that some of those cases on which he relied invoke the double jeopardy protections afforded by the New Jersey Constitution. See N.J. Const., art. I ¶ 11 (1947); and see, e.g., State v. Davis, 68 N.J. 69, 83, 342 A.2d 841, 846 (1975), cited in Brief for Appellant at 10, State v. Wooten, No. A-3657-84T4 (NJ.Super.Ct.App.Div. June 30, 1988). Hence, the State courts were fairly presented with a double jeopardy claim under the State constitution. Despite the restrictive wording of New Jersey’s Double Jeopardy Clause," }, { "docid": "14998365", "title": "", "text": "claims based on the transcript to the state courts, we must determine whether he has exhausted his state remedies with respect to these claims. A federal court may not grant a writ of habeas corpus unless the petitioner has exhausted his state court remedies. See 28 U.S.C. § 2254(b)(1)(A). To exhaust his remedies, a habeas petitioner must fully and fairly present his federal claims to the state courts. See Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir.1999). “Fan-presentment requires the petitioner to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court.” Id; see also Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.1999). The petitioner must have placed both the operative facts and the controlling legal principles before the state courts. See Rodriguez, 193 F.3d at 916. In applying these standards, federal courts should “avoid hypertechnicality.” Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir.1992). A petitioner may reformulate his claims somewhat, so long as the substance of his argument remains the same. See Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (“Obviously there are instances in which the ultimate question for disposition will be the same despite variations in the legal theory or factual allegations urged in its support.... We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.”) (internal citations and quotation marks omitted); Verdin, 972 F.2d at 1474. “[Mjere variations in the same claim rather than a different legal theory will not preclude exhaustion.” Wilks v. Israel, 627 F.2d 32, 38 (7th Cir.1980) (citing Macon v. Lash, 458 F.2d 942, 948 (7th Cir.1972)). However, a petitioner’s reformulation of his claim should not place the claim in a significantly different legal posture by making the claim stronger or more substantial. See Demarest v. Price, 130 F.3d 922, 932 & 939 (10th Cir.1997). Given these principles, we believe Mr. Boyko’s ineffective assistance of counsel claim has been exhausted, even though Mr. Boyko did not base his arguments in the state court" }, { "docid": "19364994", "title": "", "text": "the state courts. Castille v. Peoples, 109 S.Ct. at 1060; Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Id. at 278, 92 S.Ct. at 513. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts. Ross v. Petsock, 868 F.2d at 641; Gibson v. Scheidemantel, 805 F.2d at 139. We conclude that petitioner has exhausted his state court remedies. On direct appeal to the Supreme Court of Pennsylvania, petitioner argued that the trial court had erred in admitting Rutherford’s testimony because its probative value was outweighed by its prejudicial effect. The Pennsylvania Supreme Court, after finding that the details of the Nicholls homicide, as developed by Rutherford’s testimony, were relevant to prove defendants’ motive and state of mind, held that “while the possibility of prejudice existed, it was heavily outweighed by the probative value of Rutherford’s testimony.\" Travaglia, 502 Pa. at 492, 467 A.2d at 297. Lesko’s federal petition for writ of habeas corpus alleges that the probative value of Rutherford’s testimony was outweighed by its prejudicial effect, and therefore its admission was erroneous. The legal theory (the probative value of evidence was outweighed by its prejudicial effect) and the facts (the substance of Rutherford’s testimony) on which Lesko’s federal claim rests, had been submitted to the state courts. Thus, the issue decided by the Pennsylvania Supreme Court was the substantial equivalent of Lesko’s fourteenth amendment claim. See McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir.1987) (petitioner’s claim that trial judge improperly required him to act as his own counsel was substantial equivalent of his sixth amendment claim). III. Our review of the district court decision to grant the writ is plenary. We derive this standard from the function of a reviewing court in a habeas corpus proceeding. Federal courts “do not sit to retry state cases de novo but, rather, to review for violations of federal constitutional standards.” Milton v. Wainwright, 407 U.S." }, { "docid": "12001157", "title": "", "text": "at 512. Rather, the “federal claim must be fairly presented” to the state tribunal. In Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (in banc), we stated: “[T]he argument brought before the federal court must be the ‘substantial equivalent’ of a claim al ready presented to the state courts; ‘the substance of’ the claim raised in the federal court must first have been submitted to the state court.” Id. at 472 (quoting Picard, 404 U.S. at 277-78, 92 S.Ct. at 513). Moreover, it is not enough that the petitioner presents to the state court the facts upon which a federal claim is based. See Picard, 404 U.S. at 277, 92 S.Ct. at 513; Paullett v. Howard, 634 F.2d 117, 119 (3d Cir. 1980) (per curiam). A federal habeas corpus petitioner has the burden of proving all facts entitling him to a discharge from custody. See, e.g., Goins v. Brierley, 464 F.2d 947, 949 (3d Cir. 1972). Although this burden is applicable to the substantive elements of a petitioner’s claim, we see no reason why he should not bear the burden of demonstrating that he has met the procedural requisites that entitle him to relief as well. Such a rule would comport with the presumption applied in other circuits that, “[w]hen a federal court is unable to determine unequivocably that an issue has been considered and ruled upon by the state courts, comity requires that the initial determination be made by the state courts.” Tyler v. Swenson, 527 F.2d 877, 880 (8th Cir.), cert. denied, 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 766 (1976). See Echevarria v. Bell, 579 F.2d 1022, 1025 (7th Cir. 1978); Durkin v. Davis, 538 F.2d 1037, 1041-42 (4th Cir. 1976) (“doubts as to whether the issue has been so presented should be resolved against exhaustion” ); Williams v. Wainwright, 410 F.2d 144, 145 (5th Cir. 1969), cert. denied, 398 U.S. 943, 90 S.Ct. 1846, 26 L.Ed.2d 281 (1970); Ray v. Howard, 486 F.Supp. 638, 642 (E.D.Pa.1980). See also United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 95 (3d Cir. 1977), cert. denied," }, { "docid": "13473904", "title": "", "text": "“Fairly presented” means that the claim must be substantially equivalent to that litigated in the state court. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). Both the legal theory and the facts supporting a federal claim must have been submitted to the state court. O’Halloran v. Ryan, 835 F.2d 506 (3d Cir.1987), citing Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir.1986). Despite the strong preference to afford state courts the first opportunity to adjudicate the claims of its prisoners, the highest state court, however, need not have ruled on the merits of the claims for them to have been sufficiently presented for purposes of exhaustion. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir.1984); Mayberry v. Petsock, 821 F.2d 179, 184 n. 2 (3d Cir.), cert. denied, — U.S. —, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987). This dichotomy of interests is exemplified in the issue before us: does presentment of an untimely petition to the state’s highest court represent substantial compliance with the strong preference for state appellate review under the exhaustion requirement. We hold that it does. Particularly relevant to this case is our decision United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir.1982), in which the appellant had filed an untimely petition for post-conviction relief, raising the same claim as in the federal habeas petition. We concluded that the appellant had exhausted his state remedies since the “claim was fairly presented to the state courts albeit in an untimely fashion.” Id. at 439. Although we are here dealing with a direct appeal to the Pennsylvania Supreme Court and not a collateral appeal as in Caruso, we see no reason to distinguish the holding in Caruso from this matter. We must, of course, be satisfied that Bond did raise the merits of the issues he now presents to the federal courts. Since a state court’s opinion is not dispositive of the question of whether a petitioner has exhausted its claim, the “silence” of the allocatur denial order is irrelevant. We scrutinize instead the petitioner’s pleadings and briefs before the" }, { "docid": "17858996", "title": "", "text": "unexhausted claims does not satisfy the exhaustion requirement. Rose v. Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Santana v. Fenton, 685 F.2d at 73. We address first Gibson’s claim that his counsel failed to protect his juvenile status, which the district court held was an unex-hausted claim. Gibson argues that this claim is “merely an element of Petitioner’s overall assertion of ineffective assistance of counsel,” that it was subsumed in his overall claim, and that therefore it has been litigated in the state courts to the same extent as his earlier ineffective assistance of counsel claim. In order to satisfy the exhaustion requirement, the claims included in a federal petition must be fairly presented to the state courts. Picard v. Connor, 404 U.S. at 275, 92 S.Ct. at 512. This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Id. at 278, 92 S.Ct. at 513-14; Santana v. Fenton, 685 F.2d at 74. Mere reliance of state and federal claims on the same constitutional provision does not render the two claims substantially equivalent. See Brown v. Cuyler, 669 F.2d 155 (3d Cir.1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir.1976). Both the legal theory and the facts on which a federal claim rests must have been presented to the state courts. See Picard v. Connor, 404 U.S. at 277, 92 S.Ct. at 513; Brown v. Cuyler, 669 F.2d at 158-61. The transcripts of the hearings in state court show that Gibson’s ineffective assistance of counsel claim presented to the state courts asserted that counsel instructed him to plead guilty to offenses which he claims not to have committed, that he did not receive the sentences which his counsel led him to believe he would receive if he pled guilty, and that, in light of his mental capacity, the plea bargain was inadequately explained by counsel. The New Jersey courts could not have been expected, sua sponte, to consider Gibson’s ineffective assistance of counsel claim to include a claim that counsel failed to protect his juvenile status, and it" }, { "docid": "5458134", "title": "", "text": "1 (1999); see also Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir.1999). “Fair presentment requires the petitioner to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court.” Rodriguez, 193 F.3d at 916; see also Howard, 185 F.3d at 725. The petitioner must have placed both the operative facts and the controlling legal principles before the state courts. See Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir.2001); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir.2001). A mere “passing reference” to a constitutional issue certainly does not suffice. Fortini v. Murphy, 257 F.3d 39, 44 (1st Cir.2001). When applying these standards, federal courts should “avoid hyperteehnicality.” Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir.1992). A petitioner may reformulate his claims as long as the substance of the argument remains the same. See Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (“Obviously there are instances in which the ultimate question for disposition will be the same despite variations in the legal theory or factual allegations urged in its support.... We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.”) (internal citations and quotation marks omitted); see also Boyko v. Parke, 259 F.3d 781, 788 (7th Cir.2001). Mere “variations in the same claim rather than a different legal theory will not preclude exhaustion.” Wilks v. Israel, 627 F.2d 32, 38 (7th Cir.1980). A petitioner’s reformulation of his claim, however, should not “place the claim in a significantly different posture by making the claim stronger or more substantial.” Boyko, 259 F.3d 781, 788. We previously have noted that the “leeway afforded to habeas petitioners in ‘reformulating’ due process arguments is much more limited than in other constitutional contexts.” Kurzawa v. Jordan, 146 F.3d 435, 443 (7th Cir.1998) (explaining that what the petitioner requested was “much more than a mere reformulation of his arguments — he has raised two entirely new, separate due process arguments on collateral appeal”). Mere similarity of claims is insufficient to" } ]

[ { "docid": "22118346", "title": "", "text": "U. S. 142), referring to the opinion in Missouri v. Illinois: “As will be perceived, the court there ruled that the mere fact that a State had no pecuniary interest in the controversy, would not defeat the original jurisdiction of this court, which might be invoked by the State as parens patrios, trustee, guardian or representative of all or a considerable portion of its citizens; and that the threatened pollution of the waters of a river flowing between States, under-the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presented a cause of action justiciable under 'the Constitution. “In the case before us, the State of Kansas files her bill as representing and on behalf of her citizens, as well as in vindication of her alleged rights as an individual owner, and seeks relief in respect of being deprived of the waters of the river accustomed to flow through and across the State, and the consequent destruction of the property of herself and of her citizens and injury, to their health and comfort. The action complained of is state action and not the action of state officers in abuse or excess of their powers.” It .is the State of Kansas which invokes the action of this court, charging that through the action of Colorado a large portion of its territory is threatened with disaster. In this respect it is in no manner evading the provisions of the Eleventh Amendment to the Federal. Constitution. It is not acting directly and solely for the benefit of any individual citizen to protect his riparian rights. Beyond its property rights it has an interest as a State in this large tract of land bordering on the Arkansas River. -Its prosperity affects the general welfare of the State. The controversy rises, therefore, above a mere question of local private right and involves a matter of state interest, and must be considered from that standpoint. Georgia v. Tennessee Copper Co., decided \"this day, post, p. 230. This changes in some respect the scope of our inquiry." } ]

[ { "docid": "120188", "title": "", "text": "to include a determination that Puerto Rico had failed to state a claim upon which relief can be granted, we reject the Commonwealth’s contention that the issue is not properly before us. The Navy raised this issue in its answer and the district court ruled, inter alia, that Puerto Rico had failed to establish the existence of a judicially enforceable mandate. 478 F.Supp. at 697-700. . Although the Commonwealth’s standing as parens patriae in an action against the Navy may be questioned, compare Commonwealth of Pennsylvania v. Kleppe, 533 F.2d 668 (D.C.Cir. 1976) with Washington Utilities & Transp. Comm’n v. F. C. G, 513 F.2d 1142 (9th Cir. 1975), we think the Commonwealth certainly has standing to raise this issue on the basis of the alleged injuries to its quasi-sovereign interest “in all the earth and air within its domain,” an interest that is “independent of and behind the titles of its citizens .... ” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907). Cf. Massachusetts v. Mellon, 262 U.S. 447, 482, 43 S.Ct. 597, 599, 67 L.Ed. 1078 (1923) (acknowledging the distinction between a state’s quasi-sovereign interest in the environment and its status as parens patriae). See also Missouri v. Holland, 252 U.S. 416, 431, 40 S.Ct. 382, 382-383, 64 L.Ed. 641 (1920). Because we conclude that Puerto Rico has alleged “a ‘distinct and palpable injury’ ... ‘fairly traceable’ ... to the challenged conduct” of the Navy, Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978) (citations omitted), we need not decide whether the Mayor of Vieques or the Board on Environmental Quality have standing to litigate this case. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263-64, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450 (1977). . On January 11, 1971, the Navy entered into an agreement with the Government of Puerto Rico which imposed certain restrictions on the Culebra operations and also contained the Navy’s assurance that it would “continue to investigate both technological" }, { "docid": "17615970", "title": "", "text": "longstanding, if somewhat metaphysical, principle that “a state cannot, in the nature of things, be a citizen of any State.” Stone v. South Carolina, 117 U.S. 430, 433, 6 S.Ct. 799, 800, 29 L.Ed. 962 (1886); see also Illinois v. City of Milwaukee, 406 U.S. 91, 97 n.1, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 39 L.Ed. 231 (1894). Thus to the extent that Connecticut is suing in its sovereign capacity, its claim cannot be brought within the diversity jurisdiction of a district court. But Levi Strauss contends that this case is different because Connecticut is suing to some extent as parens patriae for the victims of defendant’s allegedly unlawful pricing practices. If Connecticut were suing as parens patriae for the benefit of all of its citizens, its capacity would be essentially sovereign, and it would not be a citizen for diversity purposes. But it has long been recognized that a state can act as parens patriae for a circumscribed group of its citizens. Indeed, states seeking to invoke the original jurisdiction of the Supreme Court in their capacities as sovereigns, see New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907), have been rebuffed whenever it appeared that their real claim was being brought only on behalf of particular citizens. Pennsylvania v. New Jersey, 426 U.S. 660, 665-66, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976); Oklahoma v. Atchison, Topeka & Santa Fe Railroad, 220 U.S. 277, 31 S.Ct. 434, 55 L.Ed. 465 (1911); see Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900); New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656 (1883). Presumably, a state’s role in suing on behalf of particular citizens sufficiently dispenses with its sovereign capacity not only to bar access to the Supreme Court’s original jurisdiction but also to gain access to the district courts’ diversity jurisdiction (assuming diverse citizenship of the defendant" }, { "docid": "2066197", "title": "", "text": "Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream). These cases establish the right of a State to sue as parens patriae to prevent or repair harm to its “quasi-sovereign” interests. Hawaii v. Standard Oil Co., 405 U.S. 251, 257-58, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972) (footnotes and citations omitted). The one constant throughout this doctrinal development has been that even as the concept of parens patriae has expanded, the sovereign was entitled to proceed under the doctrine only when no individual or group of individuals could seek the same relief. The Court has recognized the legitimacy of parens patriae suits. See Hawaii v. Standard Oil Co., 405 U.S. 251, 257-260, 92 S.Ct. 885, 888-890, 31 L.Ed.2d 184 (1972); Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 257, 44 L.Ed. 347 (1900). It has, however, become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims" }, { "docid": "2066162", "title": "", "text": "the violation of federal civil rights. Often such suits are authorized by federal statute such as 28 U.S.C. § 518(b). See United States v. California, 332 U.S. 19, 27, 67 S.Ct. 1658, 1662, 91 L.Ed. 1889 (1946). The presence or absence of an authorizing statute, however, bears not on the standing of the United States, an Article III issue, but on federal separation of powers concerns which are not implicated in this case. The federal sovereign interests supporting the settled standing of the United States to bring such actions are no different in kind from the sovereign interests which the Commonwealth seeks to vindicate. Parens patriae actions by the states are also familiar federal court remedies of long standing. See, e. g., Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 2335, 49 L.Ed.2d 124 (1976) (reviewing cases); Hawaii v. Standard Oil Co., 405 U.S. 251, 257-59 & n.12, 92 S.Ct. 885, 888-89 & n.12, 31 L.Ed.2d 184 (1972) (reviewing cases); Georgia v. Pennsylvania R.R., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945) (antitrust); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (interstate pollution). The federal courts must take care, of course, that state parens patriae suits are not resorted to as devices for the vindication of private rights that would not otherwise be within federal subject matter jurisdiction. There are no such concerns here, however, because claims for injunctive relief for violations of constitutional rights are unquestionably within the district court’s subject matter jurisdiction. Thus those cases stressing the importance of some form of strict scrutiny of the states’ separate sovereign interest in order to avoid enlargement of our subject matter jurisdiction are not relevant. Even if they were, however, the sovereign interests we have identified above survive such scrutiny. Courts in this circuit have long recognized that the Commonwealth may bring a parens patriae action in the United States District Courts to enforce the fourteenth amendment. See, e. g., Commonwealth of Pa. v. Brown, 260 F.Supp. 323, 338 (E.D.Pa. 1966), vacated and remanded on other grounds, 373 F.2d 771" }, { "docid": "22035960", "title": "", "text": "259 U. S. 419 (1922); New York v. New Jersey, 256 U. S. 296 (1921); Kansas v. Colorado, 206 U. S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907); Kansas v. Colorado, 185 U. S. 125 (1902); Missouri v. Illinois, 180 U. S. 208 (1901). In the earliest of these, Missouri v. Illinois, Missouri sought to enjoin the defendants from discharging sewage in such a way as to pollute the Mississippi River in Missouri. The Court relied upon an analogy to independent countries in order to delineate those interests that a State could pursue in federal court as parens patriae, apart from its sovereign and proprietary interests: “It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant State. But it must surely be conceded that, if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them. If Missouri were an independent and sovereign State all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing-a remedy and that remedy, we think, is found in the constitutional provisions we are considering.” Id., at 241. This analogy to an independent country was also articulated in Georgia v. Tennessee Copper Co., supra, at 237, a case involving air pollution in Georgia caused by the discharge of noxious gasses from the defendant’s plant in Tennessee. Justice Holmes, writing for the Court, described the State’s interest under these circumstances as follows: “[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains" }, { "docid": "22793631", "title": "", "text": "U. S. 1 (1900), a case in which the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana mer chants from sending goods into Texas. This Court recognized that Louisiana was attempting to sue, not because of any particular injury to a business of the State, but as parens patriae for all her citizens. 176 U. S., at 19. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized. This Court’s acceptance of the notion of parens patriae suits in Louisiana v. Texas was followed in a series of cases: Missouri v. Illinois, 180 U. S. 208 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River); Kansas v. Colorado, 206 U. S. 46 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); New York v. New Jersey, 256 U. S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U. S. 365 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream). These cases establish the right of a State to sue as parens patriae to prevent or repair harm to its “quasi-sovereign” interests. They deal primarily with original suits brought directly in this Court pursuant to Art. Ill, § 2, of the Constitution under common-law rights of action. The question" }, { "docid": "2066196", "title": "", "text": "parens patriae suit has been greatly expanded in the United States beyond that which existed in England. This expansion was first evidenced in Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900), a case in which the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas. This Court recognized that Louisiana was attempting to sue, not because of any particular injury to a business of the State, but as parens patriae for all her citizens. 176 U.S., at 19, 20 S.Ct., at 257. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized. This Court’s acceptance of the notion of parens patriae suits in Louisiana v. Texas was followed in a series of cases: Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923) (holding that Minnesota could sue" }, { "docid": "11829113", "title": "", "text": "F.2d 1142 (9th Cir., cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975); New York v. United States, 65 F.Supp. 856, 872 (N.D.N.Y.1946), aff’d, 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492 (1947) (affirmed without discussion of standing issue). . See Mormon Church v. United States, 136 U.S. 1, 58, 10 S.Ct. 792, 808, 34 L.Ed. 478, 497 (1890). . Hawaii v. Standard Oil Co., 405 U.S. 251, 258-59, 92 S.Ct. 885, 889-890, 31 L.Ed.2d 184, 190 (1972); Note, State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 CoiumJ.L. & S.Prob. 411, 431 (1970). . State standing on an explicit parens patriae theory was first upheld by the Supreme Court in Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 343-344, 45 L.Ed. 497, 512 (1901). The theory had been considered a year earlier in Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 257, 44 L.Ed. 347, 354 (1900), where the unique facts of the case led the Court to a conclusion of no standing. . Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038, 1044 (1907). . New Jersey v. New York, 283 U.S. 336, 51 S.Ct. 478, 75 L.Ed. 1104 (1931) (standing not discussed); North Dakota v. Minnesota, 263 U.S. 365, 373-74, 44 S.Ct. 138, 139, 68 L.Ed. 342, 345 (1923); Wyoming v. Colorado, 259 U.S. 419, 464, 42 S.Ct. 552, 557, 66 L.Ed. 999, 1013 (1922); Kansas v. Colorado, 206 U.S. 46, 99-100, 27 S.Ct. 655, 668, 51 L.Ed. 956, 975 (1907). . New York v. New Jersey, 256 U.S. 296, 301-02, 41 S.Ct. 492, 493-494, 65 L.Ed. 937, 940 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038, 1044 (1907); Missouri v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572 (1906) (standing not discussed); Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 343-344, 45 L.Ed. 497, 512 (1901). . Pennsylvania v. West Virginia, 262 U.S. 553, 591, 43 S.Ct. 658, 663, 67 L.Ed. 1117, 1129 (1923)." }, { "docid": "18903198", "title": "", "text": "State of Maryland, Department of Natural Resources v. Amerada Hess, supra, n. 20 at 1065-1067; State Dept, of Environmental Protection v. Jersey Central Power & Light Co., 124 N.J.Super. 97, 308 A.2d 671 (1973); see “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Interaction.”, 68 Mich.L.Rev. (1970); “Environmental Law — Public Trust — Inquiry to Public Trust as Basis for Award of Damages ”, 5 Seton Hall L.Rev. 394 (1974). Additionally, in its capacity as parens patriae, the Commonwealth has a sovereign interest in the general welfare of its citizens which transcends any injury which may be caused to its proprietary interests or to the property of its individual citizens. Particularly when a nuisance of disastrous proportions occurs such as in the case of a maritime oil spill, the special status of the body politic vis-a-vis its citizens gives rise to a right to seek redress on behalf of the collective community which is not limited to the abatement of the nuisance, but which can allow for recovery for damages by the body politic. ■ Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Louisiana v. Texas, 176 U.S. 1, 20 U.S. 251, 44 L.Ed. 347 (1900); Georgia v. Pa. R. Co., 324 U.S. 439, 447, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); Georgia v. Tenn. Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038 (1907); Maine v. M/V Tanamo, supra. See, “State Protection of Its Economy and Environment, Parens Patriae Suits for Damages ”, 6 Col.J. of L. & Soc. Prob. 411 (1970). The E.Q.B. is clearly granted standing to sue for environmental damages by its enabling statute. 12 L.P.R.A. 1131(29). It of course, does not recover damages separate and apart from the Commonwealth. PLAINTIFFS’ DAMAGES AND RELATED SUBJECTS Bahia Sucia The issue of the damages suffered by Plaintiffs and the recovery to which they are entitled, which are the real cruxes of the present cases, must necessarily begin with a description of the impacted areas as well as of the various flora and fauna within their confines, as" }, { "docid": "22469686", "title": "", "text": "405 U.S. at 257-260, 92 S.Ct. 885. In this country the parens patriae function expanded somewhat and devolved upon the states that, to some extent, ceded it to the federal government. See Massachusetts v. Mellon, 262 U.S. 447, 485-486, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Public Utilities Commission v. United States, 356 F.2d 236, 241 n.1 (9th Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 35, 17 L.Ed.2d 54 (1966). Hence, the federal government and the states, as the twin sovereigns in our constitutional scheme, may in appropriate circumstances sue as parens patriae to vindicate interests of their citizens. E. g., Hawaii, supra; Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L. Ed. 937 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1970); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900). On the other hand, political subdivisions such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae, although they might sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants. We have already concluded that, inasmuch as appellee states failed to allege any injury to their “commercial interests”, they lack standing qua parens patriae, or in any other capacity, to seek relief under section 4 of the Clayton Act. Moreover, our court has recently held that a state cannot sue as parens patriae under section 4 on behalf of its citizen-consumers for injuries suffered by them. California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir. 1973). Their parens patriae suit under section 16 of the Clayton Act, however," }, { "docid": "22469687", "title": "", "text": "L.Ed. 1038 (1970); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900). On the other hand, political subdivisions such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae, although they might sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants. We have already concluded that, inasmuch as appellee states failed to allege any injury to their “commercial interests”, they lack standing qua parens patriae, or in any other capacity, to seek relief under section 4 of the Clayton Act. Moreover, our court has recently held that a state cannot sue as parens patriae under section 4 on behalf of its citizen-consumers for injuries suffered by them. California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir. 1973). Their parens patriae suit under section 16 of the Clayton Act, however, presents a separate but readily manageable issue. In Georgia v. Pennsylvania Railroad Co., supra, the Supreme Court upheld Georgia’s parens patriae action under section 16 for an injunction against a conspiracy between large railroad companies. The analysis of that case rendered in Hawaii, supra, 405 U.S. at 259-260, 92 S.Ct. 885, bespeaks the continuing availability of parens patriae actions under section 16 for injunctive relief for injuries to a state’s economy. Insofar as the state appellees have alleged injury to their economies, they have standing under section 16. In reaffirming this principle, we quote the presaging language of Mr. Justice Holmes: “[T]he State has an interest independent of and behind the title of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. “It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted . . that the forests" }, { "docid": "22035961", "title": "", "text": "could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing-a remedy and that remedy, we think, is found in the constitutional provisions we are considering.” Id., at 241. This analogy to an independent country was also articulated in Georgia v. Tennessee Copper Co., supra, at 237, a case involving air pollution in Georgia caused by the discharge of noxious gasses from the defendant’s plant in Tennessee. Justice Holmes, writing for the Court, described the State’s interest under these circumstances as follows: “[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. . . . “. . . When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests.” Both the Missouri case and the Georgia case involved the State’s interest in the abatement of public nuisances, instances in which the injury to the public health and comfort was graphic and direct. Although there are numerous examples of such parens patriae suits, e. g., North Dakota v. Minnesota, supra (flooding); New York v. New Jersey, supra (water pollution); Kansas v. Colorado, 185 U. S. 125 (1902) (diversion of water), parens patriae interests extend well beyond the prevention of such traditional public nuisances. In Pennsylvania v. West Virginia, 262 U. S. 553 (1923), for example, Pennsylvania was recognized as a proper party to represent the interests of its residents in maintaining access to natural gas produced in West Virginia:" }, { "docid": "19844673", "title": "", "text": "parens patriae doctrine allows a state to maintain a legal action where state citizens have been harmed, where the state maintains a quasi-sovereign interest. Alfred L. Snapp & Son, Inc. v. Puerto Rico, - U.S. -, 102 S.Ct. 3260, 3265-66, 73 L.Ed.2d 995 (1982). A state maintains a quasi-sovereign interest either where the health and well-being of its residents is affected, or where the state works to assure that its residents enjoy the full benefit of federal laws. Id. at -, 102 S.Ct. at 3269-70. Minnesota maintains a-quasi-sovereign interest in both these realms. First, Minnesota has a quasi-sovereign interest in protecting the economic health of its citizens. In Snapp, the Court recognized that “a state’s interests in the health and well-being of its residents extends beyond mere physical interests to economic and commercial interests.” Id. at -, 102 S.Ct. at 3270. The Court cited its earlier opinion in Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), in which Georgia alleged that 20 railroads had conspired to fix discriminatory freight rates, in violation of federal antitrust law. The Court allowed Georgia to bring its action as parens patriae, finding that Georgia as a representative of the public is complaining of a wrong, which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister states. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. Id. at 451, 65 S.Ct. at 723. Minnesota alleges just such a wrong. Consequently, the State is entitled to bring this action as parens patriae. Defendant cites Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976), in opposition. In that case, the Court denied Pennsylvania’s mo tion to file suit as parens patriae on behalf of its citizens, to challenge a New Jersey tax on New Jersey-derived income of nonresidents. In a five-member opinion, the Court found that Pennsylvania" }, { "docid": "22793632", "title": "", "text": "to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); New York v. New Jersey, 256 U. S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U. S. 365 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream). These cases establish the right of a State to sue as parens patriae to prevent or repair harm to its “quasi-sovereign” interests. They deal primarily with original suits brought directly in this Court pursuant to Art. Ill, § 2, of the Constitution under common-law rights of action. The question in this case is not whether Hawaii may maintain its lawsuit on behalf of its citizens, but rather whether the injury for which it seeks to recover is compensable under § 4 of the Clayton Act. Hence, Hawaii’s claim cannot be resolved simply by reference to any general principles governing parens patriae actions. The only time this Court has ever faced the question of what relief, if any, the antitrust laws offer a State suing as parens patriae was in Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), the case relied on most heavily by the parties herein. In that case, Georgia sought to invoke the original jurisdiction of this Court by filing an amended bill of complaint against 20 railroads, alleging, in essence, that the railroads had conspired to restrain trade and to fix prices in a manner that would favor shippers in other States (particularly Northern States) to the detriment of Georgia shippers. Like this suit, Georgia arose under the federal antitrust laws. It is plain from the face of the" }, { "docid": "19844674", "title": "", "text": "freight rates, in violation of federal antitrust law. The Court allowed Georgia to bring its action as parens patriae, finding that Georgia as a representative of the public is complaining of a wrong, which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister states. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. Id. at 451, 65 S.Ct. at 723. Minnesota alleges just such a wrong. Consequently, the State is entitled to bring this action as parens patriae. Defendant cites Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976), in opposition. In that case, the Court denied Pennsylvania’s mo tion to file suit as parens patriae on behalf of its citizens, to challenge a New Jersey tax on New Jersey-derived income of nonresidents. In a five-member opinion, the Court found that Pennsylvania had no quasi-sovereign interest in the matter, and that its suit represented a collectivity of private actions for taxes withheld from private parties. Id. at 666, 96 S.Ct. at 2336. However, in Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981), the Court upheld Maryland’s parens patriae challenge of a Louisiana tax on natural gas. The Court held that a state “may act as the representative of its citizens in original actions where the injury alleged affects the general population of a state in a substantial way.” Id. at 737, 101 S.Ct. at 2124. As in Maryland, Minnesota alleges an economic injury to a large number of its citizens. On the basis of Maryland, Minnesota is thus warranted in bringing a parens patriae action. Minnesota also maintains a quasi-sovereign interest in assuring that its residents receive the benefits that flow from participation in the federal system. In Snapp, the Court found that a state has the right to bring an action to guarantee that its residents enjoy the full benefit of" }, { "docid": "23264110", "title": "", "text": "however, become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens. Compare, e. g., Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387 (1938); Oklahoma v. Atchison, T. & S. F. R. Co., 220 U. S. 277 (1911); Kansas v. United States, 204 U. S. 331 (1907) (States may not invoke original jurisdiction of Supreme Court to prosecute purely personal claims of their citizens), with, e. g., North Dakota v. Minnesota, 263 U. S. 365 (1923); Pennsylvania v. West Virginia, 262 U. S. 553 (1923); New York v. New Jersey, 256 U. S. 296 (1921); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907); Kansas v. Colorado, 206 U. S. 46 (1907) (original jurisdiction sustained for States protecting quasi-sovereign interests). This rule is a salutary one. For if, by the simple expedient of bringing an action in the name of a State, this Court’s original jurisdiction could be invoked to resolve what are, after all, suits to redress private grievances, our docket would be inundated. And, more important, the critical distinction, articulated in Art. Ill, § 2, of the Constitution, between suits brought by “Citizens” and those brought by “States” would evaporate. Pennsylvania’s parens patriae suit against New Jersey represents nothing more than a collectivity of private suits against New Jersey for taxes withheld from private parties. No sovereign or quasi-sovereign interests of Pennsylvania are implicated. Accordingly, Pennsylvania’s motion for leave to file suit as parens patriae on behalf of its citizens is also denied. Me. Justice Brennan and Mr. Justice White dissent and would grant leave to file both bills of complaint. Mr. Justice Powell and Mr. Justice Stevens took no part in the consideration or decision of these cases. Mr. Justice Blackmun, concurring. Obviously, and naturally, I join the Court’s per curiam opinion. Last Term, in lonely dissent, in the case which has spawned the present motions by Pennsylvania and by Maine, Massachusetts, and Vermont, I said: “Because the New Hampshire income" }, { "docid": "22483059", "title": "", "text": "revenues,\" id. ), the State Plaintiffs cannot maintain their information-use policy claims based on alleged harms to their proprietary interests. ii. Quasi-Sovereign Interests Accordingly, the court will consider whether the State Plaintiffs can assert these claims parens patriae to vindicate their quasi-sovereign interests. States may bring parens patriae (literally, \"parent of the country\") suits to vindicate what the Court has characterized as \"quasi-sovereign\" interests. See Snapp, 458 U.S. at 600-02, 102 S.Ct. 3260. There are no bright-line rules for which interests qualify as \"quasi-sovereign.\" See id. at 600, 607, 102 S.Ct. 3260 ; 13B Charles A. Wright et al., Federal Practice and Procedure § 3531.11.1, at 117 (3d ed. 2008) (\"Wright & Miller\"). In general, however, the Court has recognized that a state has quasi-sovereign interests in the \"health and well-being-both physical and economic-of its residents in general,\" in protecting state \"residents from the harmful effects of discrimination,\" and in challenging the discriminatory denial of a state's \"rightful status within the federal system.\" Id. at 607, 609, 102 S.Ct. 3260. There are, however, at least two notable limitations on states' parens patriae standing. First, to be \"quasi-sovereign,\" the state's interests must be sufficiently generalized that the state is seeking to vindicate its citizens' welfare, rather than simply pressing suit on behalf of its individual residents. See id. at 607, 102 S.Ct. 3260 (\"[M]ore must be alleged than injury to an identifiable group of individual residents....\"). A state cannot sue parens patriae when it is \"merely litigating as a volunteer the personal claims of its citizens.\" Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976). Second, special considerations are present when a state brings a parens patriae suit against the federal government. See 13B Wright & Miller § 3531.11.1, at 96. In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the Court rejected Massachusetts's attempt to bring a parens patriae suit challenging a federal statute as unconstitutional. See id. at 485-86, 43 S.Ct. 597. \"While the state, under some circumstances, may sue in [a parens patriae ] capacity for the" }, { "docid": "23264109", "title": "", "text": "to New Hampshire, and nothing prevents Pennsylvania from withdrawing that credit for taxes paid to New Jersey. No State can be heard to complain about damage inflicted by its own hand. Pennsylvania, in attempting to establish its entitlement to taxes collected by New Jersey from its residents, has alleged that the New Jersey Transportation Benefits Tax Act violates both the Privileges and Immunities Clause and the Equal Protection Clause. Maine, Massachusetts, and Vermont claim that New Hampshire’s withholding of taxes collected under its unconstitutional commuters tax violates the Privileges and Immunities Clause. The short answer to these contentions is that both Clauses protect people, not States. What has been said disposes of the claims brought by the plaintiff States on their own behalf. In addition, however, Pennsylvania has filed a claim against New Jersey as parens patriae on behalf of its citizens. The Court has recognized the legitimacy of parens patriae suits. See Hawaii v. Standard Oil Co., 405 U. S. 251, 257-260 (1972); Louisiana v. Texas, 176 U. S. 1, 19 (1900). It has, however, become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens. Compare, e. g., Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387 (1938); Oklahoma v. Atchison, T. & S. F. R. Co., 220 U. S. 277 (1911); Kansas v. United States, 204 U. S. 331 (1907) (States may not invoke original jurisdiction of Supreme Court to prosecute purely personal claims of their citizens), with, e. g., North Dakota v. Minnesota, 263 U. S. 365 (1923); Pennsylvania v. West Virginia, 262 U. S. 553 (1923); New York v. New Jersey, 256 U. S. 296 (1921); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907); Kansas v. Colorado, 206 U. S. 46 (1907) (original jurisdiction sustained for States protecting quasi-sovereign interests). This rule is a salutary one. For if, by the simple expedient of bringing an action in the name of a State, this Court’s original jurisdiction could be invoked" }, { "docid": "22016941", "title": "", "text": "on the basis of the “likelihood of future violations” standard. With respect to the Michigan Attorney General, it is not as readily apparent that the above standard is applicable. The Attorney General has standing to sue for an injunction not pursuant to express statutory authorization as does the C.F.T.C., but on the basis of an implied cause of action under the Commodity Exchange Act and the parens patriae doctrine. In my view, however, the rationale behind the standard supports a conclusion that the test is equally applicable to the Attorney General’s motion for a preliminary injunction. As noted, the Attorney General has standing under the parens patriae doctrine. Under that doctrine, a state may act on behalf of its citizens in a lawsuit if its sovereign or quasi-sovereign interests are implicated. Inherent in the concept of quasi-sovereign interests is protection of the public interest. Surely some of the most basic of a state’s quasi-sovereign interests include maintenance of the integrity of markets and exchanges operating within its boundaries, protection of its citizens from fraudulent and deceptive practices, support for the general welfare of its residents and its economy, and prevention of its citizens’ revenues from being wrongfully extracted from the state. See Hawaii v. Standard Oil Co., 405 U.S. 251, 260-62, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), Georgia v. Pennsylvania Rr. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945). This is not a case in which the state is gratuitously attempting to prosecute purely personal claims of its citizens, see Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976), but rather is one in which the state is seeking to protect the public interest. Accordingly, the policy permitting a federal regulatory agency to sue for injunctive relief without reference to all of the elements of the traditional standard for preliminary injunctions applies to a state’s parens patriae suit as well. The Sixth Circuit Court of Appeals has neither accepted nor rejected the standard discussed above. In Securities and Exchange Comm’n v. Senex Corp., 534 F.2d 1240 (6th Cir. 1976), however, the" }, { "docid": "22469685", "title": "", "text": "a violation.” Unlike standing under section 4, standing under section 16 does not require an injury to “commercial interests” but only an injury cognizable in equity. For example, housing segregations enforced by an antitrust conspiracy of realtors constitutes an injury to excluded minority members that confers standing for injunctive relief under section 16, see Bratcher v. Board of Realtors, 381 F.2d 723 (6th Cir. 1967), although not for treble damages under section 4. Since all appellees herein have alleged “threatened loss or damage” to interests cognizable in equity, they have standing to seek equitable protection under section 16 of the Clayton Act. We emphasize that we now intimate no conclusions as to either the merits of the equitable claims or the availability of any form of injunctive relief. These issues must, in the first instance, be resolved by the District Court. III. PARENS PATRIAE At common law, the concept of parens patriae invested the English Sovereign with powers and duties — the “royal prerogative” — to protect certain interests of his subjects! See Hawaii, supra, 405 U.S. at 257-260, 92 S.Ct. 885. In this country the parens patriae function expanded somewhat and devolved upon the states that, to some extent, ceded it to the federal government. See Massachusetts v. Mellon, 262 U.S. 447, 485-486, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Public Utilities Commission v. United States, 356 F.2d 236, 241 n.1 (9th Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 35, 17 L.Ed.2d 54 (1966). Hence, the federal government and the states, as the twin sovereigns in our constitutional scheme, may in appropriate circumstances sue as parens patriae to vindicate interests of their citizens. E. g., Hawaii, supra; Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L. Ed. 937 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51" } ]

[ { "docid": "22660125", "title": "", "text": "1570, 1574 n. 3 (Fed.Cir.1993) (“Legal conclusions are, of course, always reviewed de novo.”); Heisig v. United States, 719 F.2d 1153, 1158 (Fed.Cir.1983); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 1960, 80 L‘.Ed.2d 502 (1984) (“[A]n appellate court[ ] [has] power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.”). Notwithstanding the jury’s verdict, on review of a motion for JMOL the court retains the power and duty to say what the correct law is, and then to examine the factual issues submitted to the jury and determine whether findings thereon are supported by substantial evidence and support the verdict under the law. Read Corp., 970 F.2d at 821, 23 USPQ2d at 1431; Senmed, Inc. v. Richard-Allan Medical Indus., Inc., 888 F.2d 815, 818, 12 USPQ2d 1508, 1511 (Fed.Cir.1989); Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1550, 220 USPQ 193, 200 (Fed.Cir.1983). Since matters of law must be reviewed de novo and matters of fact must be accorded substantial deference, the review of a grant of JMOL requires careful distinction between fact and law. In this case which involves claim construction and a grant of JMOL of noninfringement based on claim construction, in order to determine whether that grant was correct, we must distinguish law from fact. C. An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. Read Corp., 970 F.2d at 821,23 USPQ2d at 1431. The second step is comparing the properly construed claims to the device accused of infringing. Id. It is the first step, commonly known as claim construction or interpretation, that is at issue in this appeal. III. A. The opinions of this court have contained some inconsistent statements as to whether and to what extent claim construction is a legal or factual issue, or a mixed issue. Markman cites some of our" } ]

[ { "docid": "21664162", "title": "", "text": "Finally, it construed the “selectively changing” limitation to mean that “a change [in transmission rates] is chosen and occurs, although it need not occur during a communication session.” Id. at 497. Based on these claim constructions, Bell Atlantic conceded that the accused Covad systems do not literally infringe. Moreover, the district court determined that Covad’s SDSL transceivers do not infringe under the doctrine of equivalents because they “perform substantially different functions in a substantially different way to achieve substantially different results.” Id. at 498. The district court reasoned that “Covad’s single channel utilizes echo cancellation techniques to allow two-way communications, which differs substantially from two separate unidirectional channels.” Id. at 497. Bell Atlantic timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). II. STANDARD OF REVIEW We review the grant of a motion for summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Newbanks v. Cent. Gulf Lines, Inc., 64 F.Supp.2d 1, 4 (D.Mass.1999). The determination of infringement is a two-step process. First, the court construes the claims to correctly determine the scope of the claims. Second, it compares the properly construed claims to the accused device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). Claim construction is an issue of law that we review de novo. Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. A determination of infringement, both literal and under the doctrine of equivalents, is a question of fact. Insituform Techs.," }, { "docid": "8755972", "title": "", "text": "the test had a ± 5 ppm margin of error, the court determined that that evidence was insufficiently precise to prove infringement, and thus granted summary judgment in favor of appellees. On July 13, 2006, the court entered judgment of noninfringement based on the burden of proof motion in favor of appel-lees, pursuant to Federal Rule of Civil Procedure 54(b). Warner Lambert timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review the district court’s grant of summary judgment de novo, reapplying the standard applicable at the district court. See Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301 (Fed.Cir.1999). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). In addition, in deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted.... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456 (Fed.Cir.1998). Step two, comparison of the claim to the accused device, requires a determination that every claim limitation or its equivalent be found in the accused device. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are questions of fact, and on summary judgment, the issue is whether" }, { "docid": "14727187", "title": "", "text": "Boura incorporated the terms from the Marcillat patent (i.e. “metallization,” “made from one and the same crystalline wafer,” and “flat fixed part”) into his own patent application on May 15,1987. It appears that Boura’s intent in adding these terms was to secure quick allowance of the Boura application and to avoid the objections raised during Marcillat’s prosecution of his patent. Under these circumstances, the Court finds that Boura should be estopped from asserting infringement under the doctrine of equivalents against Analog as to these claim elements[.] Because Sextant is estopped from asserting infringement under the doctrine of equivalents as to the individual “metallization,” “made from one and the same wafer,” and “flat fixed part” limitations of the Boura claims, the court GRANTS judgment in favor of Analog on Sextant’s doctrine of equivalents claim as regards the Boura patent. Id. at 14-15 (brackets in quote from Pall in original). Sextant appealed the noninfringement rulings to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). II. DISCUSSION A. Standard of Review Judgment as a matter of law (JMOL) is appropriate when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). We review a district court’s decision on a motion for JMOL de novo, reapplying the JMOL standard. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 975, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). We similarly review a district court’s grant of summary judgment de novo, reapplying the summary judgment standard. See Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994). B. Claim Construction and Literal Infringement “An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be" }, { "docid": "7813539", "title": "", "text": "an interpretation of the “sprocket recess” limitation that encompassed a single transverse element because' claim 2 of the ’518 patent explicitly required opposing transverse elements. The court disagreed, noting that “claim differentiation is a guide, not a rigid rule,” and that, because the “sprocket recess” limitation bore “only one interpretation, similarity [between the claims] will have to be tolerated.” Slip op. at A22 (citations and internal quotations omitted). Working from this .claim construction, the court concluded that neither of the accused devices literally infringed the asserted claims, and granted KVP’s motion for summary judgment of noninfringement. Specifically, the court determined that neither the “All-In-One” module nor the “Fluid Flo” module infringed the claims because each had curved driving surfaces and accordingly did not meet the “driving surface” limitation. •Additionally, the court determined that the “All-In-One” module had only a single transverse element and accordingly did not meet the “sprocket recess” limitation. The court further concluded that prosecution history estoppel precluded infringement under the doctrine of equivalents. The court granted Laitram’s motion for summary judgment that the claims of its patents were not invalid, concluding that, even if the evidence were construed “in the light most favorable to KVP, [KVP] cannot show by clear and convincing evidence that the” asserted claims were invalid. Slip op. at A33. Laitram appeals the district court’s grant of KVP’s summary judgment motion for non-infringement, arguing that the court’s claim construction was erroneous and that the existence of genuinely disputed fact issues precluded summary judgment of noninfringement under the doctrine of equivalents. KVP cross-appeals the district court’s grant of Laitram’s summary-judgment motion that the asserted claims are not invalid. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION A. Standard of Review Literal infringement involves a-two-step determination: the proper construction of the asserted claim and a determination whether the claim as properly construed reads on the accused product or method. Claim construction is a question of law, which we review de novo. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct." }, { "docid": "14139702", "title": "", "text": "That qualitative difference must be such as to make the information ‘less likely to have been improperly obtained’ than the three specifically listed items.” (emphasis in original)); TD Ameritrade Summary Judgment Order at 10. Based on this enhanced construction, the district court determined that the systems used by the Federated Appellees, which verify identity using name, address, social security number, and third-party credit card number, did not literally infringe because the third-party credit card number did not constitute “additional information less likely to have been improperly obtained.” Federated Summary Judgment Order at 14. Similarly, it determined that the systems used by the TD Ameritrade Appellees, which use a birthdate or phone number in addition to name, address, and social security number, did not infringe because a birth-date or phone number are not types of information “less likely to have been improperly obtained.” TD Ameritrade Summary Judgment Order at 12. The “verify the applicant’s identity” limitation did not form the basis for the district court’s summary judgment of non-infringement with respect to the HSBC Appellees. Decisioning timely appealed the district court’s summary judgments of non-infringement. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION A. Standard of Review Claim construction is an issue of law, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), over which we exercise plenary review, Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). We likewise review the district court’s grant of summary judgment de novo, reapplying the standards applied by the district court. SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1283 (Fed.Cir.2005). Summary judgment is generally appropriate when, after making all inferences in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Analysis Decisioning argues that the district court erroneously construed three terms: “remote interface,” “verify the" }, { "docid": "14626232", "title": "", "text": "permit no more than “about 0.5% silicon” and therefore granted summary judgment of noninfringement. AK Steel, 234 F.Supp.2d at 720. The judge also adopted the special master’s thorough construction of claims 1, 3, 5, and 7 of the '549 patent as encompassing Type 1 aluminum and his conclusion that the patent did not enable one skilled in the art to practice the invention with Type 1 aluminum, as required by 35 U.S.C. § 112, ¶ 1 .Id. at 718. The court therefore granted summary judgment of invalidity with respect to those '549 patent claims. Id. at 719. AK Steel timely appealed and Sollac timely cross-appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate if “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). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, in deciding whether summary judgment is warranted, the court “must view the evidence presented through the prism of the substantive evidentiary burden” that would inhere at trial. Id. at 245, 106 S.Ct. 2505. A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of a claim to the accused device, requires a" }, { "docid": "23530087", "title": "", "text": "model. The jury verdict found that the MAS model infringed the '678 patent under the doctrine of equivalents and awarded lost profits and reasonable royalty damages. Medtronic moved for judgment as a matter of law that the MAS model did not infringe under the doctrine of equivalents and that DePuy was not entitled to lost profit damages; both motions were denied. On appeal, DePuy challenges the court’s finding that no issue of material fact exists as to whether the bottom-loaded screw and Vertex® models infringe the '678 patent and the court’s application of the “all elements” rule. On cross-appeal, Medtronic challenges the court’s construction of the “compression member” limitation and the court’s denial of its motions for JMOL. We have jurisdiction under 28 U.S.C. § 1295(a)(1). DISCUSSION I. Standard of Review This court reviews a district court’s grant of summary judgment of non-infringement de novo. Hilgraeve Corp. v. McAfee Assocs., Inc., 224 F.3d 1349, 1352 (Fed.Cir.2000). Summary judgment is proper only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Claim construction is an issue of law, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo. See Phillips v. AWH Corp., 415 F.3d 1303, 1328 (Fed.Cir.2005) (en banc); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). Infringement, whether literal or under the doctrine of equivalents, is a question of fact. Ferguson Beauregard v. Mega Sys., Inc., 350 F.3d 1327, 1338 (Fed.Cir.2003). The determination of infringement under the doctrine of equivalents is limited by two primary legal doctrines, prosecution history estoppel and the “all elements” rule, the applications of which are questions of law. Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1378 (Fed.Cir.2005). “We review the district court’s denial of a motion for JMOL without deference, applying the same standard employed by" }, { "docid": "13789859", "title": "", "text": "auxiliary gauges and lights immediately turn off. Power is not supplied to the snowmobile’s auxiliary gauges and lights for any amount of time if the operator tries to start the snowmobile’s engine without a cap in place. The district court denied Bombardier’s motion for summary judgment of invalidity, but granted Bombardier’s motion for summary judgment of noninfringement. The court found that the accused devices do not (1) “monitor the operative connec tion with said code-providing device” or (2) “interrupt power to the load responsive to said code-providing device being operatively disconnected from said controller.” The court did not address infringement under the doctrine of equivalents. Boss appeals the grant of summary judgment of noninfringement. Bombardier conditionally cross-appeals the denial of summary judgment of invalidity. We have jurisdiction over a final judgment under 28 U.S.C. § 1295(a)(1). DISCUSSION _ A. Standard of Review We review a district court’s grant of summary judgment de novo, reapplying the standard applicable at the district court. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301 (Fed.Cir.1999). Summary judgment is only appropriate when “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); Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.2001). Determining infringement requires two steps. “First, the claim must be properly construed to determine ’its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed.Cir.1993). Claim construction is an issue of law that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). The proper inquiry is whether the evidence is such that a reasonable jury" }, { "docid": "14727188", "title": "", "text": "matter of law (JMOL) is appropriate when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). We review a district court’s decision on a motion for JMOL de novo, reapplying the JMOL standard. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 975, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). We similarly review a district court’s grant of summary judgment de novo, reapplying the summary judgment standard. See Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994). B. Claim Construction and Literal Infringement “An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing.” Markman, 52 F.3d at 976, 34 USPQ2d at 1326. The first step, claim construction, is a question of law, which we review de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc). The second step is factual. See North Am. Vaccine, Inc. v. American Cyanamid Co., 7 F.3d 1571, 1574, 28 USPQ2d 1333, 1335 (Fed.Cir.1993). When construing a claim, a court principally consults the evidence intrinsic to the patent, viz., the claims themselves, the written description portion of the specification, and the prosecution history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83, 39 USPQ2d 1573, 1576-77 (Fed.Cir.1996). Sextant argues that the court erred in its construction of the four claim limitations that were construed against it, viz., “metallization,” “one and the same crystalline wafer,” “flat fixed part,” and “two parallel blades.” Because we conclude that the district court did not err in its construction of the term" }, { "docid": "2004872", "title": "", "text": "slip op. at 14. Citing, inter alia, Rapoport v. Dement, 254 F.3d 1053 (Fed.Cir.2001), the court then construed the phrase “treating or preventing macrocytic-megaloblastic anemia” to require that, in order to infringe the patent, the human subject of the claimed method take the compound with the intent of treating or preventing macrocytic-megaloblastic anemia. Jansen, slip op. at 16. Because the court found no evidence of such intent or purpose on the part of Rexall’s customers, the court granted summary judgment of noninfringement. Id. at 16-17. Jansen timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Summary judgment is appropriate if “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). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of the claim to the accused device, requires a determination that every claim limitation or its equivalent is found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are questions of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998)." }, { "docid": "19783825", "title": "", "text": "available because they failed to assert either actual or constructive fraud in their complaint. ACell appeals the district court’s construction of “urinary bladder submucosa” and “at least the luminal portion of the tunica mucosa,” the jury’s findings of infringement of claims 1, 7, and 8 of the ’389 patent, and the adequacy of the verdict form. Cook cross-appeals several rulings by the district court with respect to its willfulness case and the district court’s decision to stay an award of a permanent injunction until after appeal to this court. PRF cross-appeals several of the district court’s rulings pertaining to inventorship and its dismissal of PRF’s unjust enrichment claim. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION A. Standard of Review We review a district court’s grant of summary judgment de novo, reapplying the standard applicable at the district court. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301 (Fed.Cir.1999). Summary judgment is appropriate when it has been shown “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Scaife v. Cook County, 446 F.3d 735, 739 (7th Cir.2006). We review the district court’s denial of a motion for JMOL de novo. Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1248 (Fed. Cir.2005). A court may grant JMOL on an issue when “there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party on that issue----” Fed.R.Civ.P. 50(a)(1). Determining infringement generally requires two steps. “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed.Cir.1993). Claim construction is an issue of law that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)." }, { "docid": "16642096", "title": "", "text": "S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306, 54 USPQ2d 1910, 1912 (Fed.Cir.2000). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). “If there are no material facts in dispute precluding summary judgment, our task is to determine whether the judgment granted is correct as a matter of law.” Elekta, 214 F.3d at 1306, 54 USPQ2d at 1912. A determination of infringement requires a two-step analysis. Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998). “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Id. (quoting Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993)). “Literal infringement requires that every limitation of the patent claim be found in the accused device.” Gen. Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 981, 41 USPQ2d 1440, 1445 (Fed.Cir.1997). Claim construction is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). “Whether certain claim language invokes 35 U.S.C. § 112, ¶ 6 is an exercise of claim construction and is therefore a question of law, reviewable de novo by this court.” Personalized Media v. Int’l Trade Comm’n, 161 F.3d 696, 702, 48 USPQ2d 1880, 1886 (Fed.Cir.1998). Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). B. Claim Construction Wenger argues that the district court erred in interpreting the “air circulation means” limitation as requiring structure capable of recirculating air. Wenger contends that," }, { "docid": "11368081", "title": "", "text": "Id. at 9. Addressing the merits of the equivalency challenge, the district court determined that “a reasonable jury could not find that the Pioneer System contains the equivalent of an ‘actuation means,’ with a structure ‘connecting’ the tension bail to the extension assembly” and that the difference between the two systems was “substantial as a matter of law.” Id. at 10-13. The district court declined to address Se-arfoss’ argument that the Pioneer System literally infringed the “whereby” clause of claim 3 of the '955 patent because it found that Pioneer did not infringe the “actuation means” limitation of claim 3 under the doctrine of equivalents. Id. at 14. Searfoss appeals from the entry of summary judgment of non-infringement. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). This opinion follows the court’s review of the record and consideration of the parties’ oral argument, heard on May 7, 2004. DISCUSSION We review de novo a district court’s grant of summary judgment. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate if, drawing all factual inferences in favor of the non-movant, he cannot show there is a genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Analysis of infringement involves two steps. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). First, the trial court determines the scope and meaning of the asserted claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The trial court’s claim construction is an issue of law reviewed without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). Second, the claims as construed by the court are compared limitation by limitation to the features of the allegedly infringing device. Johnson Worldwide, 175 F.3d at 988. We affirm a district court’s grant of summary judgment of non-infringement only if, “after viewing the alleged facts in the light most favorable" }, { "docid": "14139703", "title": "", "text": "timely appealed the district court’s summary judgments of non-infringement. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION A. Standard of Review Claim construction is an issue of law, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), over which we exercise plenary review, Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). We likewise review the district court’s grant of summary judgment de novo, reapplying the standards applied by the district court. SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1283 (Fed.Cir.2005). Summary judgment is generally appropriate when, after making all inferences in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Analysis Decisioning argues that the district court erroneously construed three terms: “remote interface,” “verify the applicant’s identity,” and “compare ... and.... ” The district court’s grants of summary judgment of non-infringement were based on its constructions of the first two of these terms. The district court did not grant summary judgment based on the last of these terms, which was argued as another ground for summary judgment, however. Because we conclude that the district court erred in its construction of this term, and because the term is identified by the parties as a potentially-relevant term on remand, we construe it in this opinion. Decisioning argues that under the correct constructions, the district court’s summary judgments of non-infringement should be overturned. We first address the correctness of the district court’s claim constructions. We then determine whether the district court’s grants of summary judgment can be sustained. 1. Claim Construction a. “remote interface” The evolution of the '205 application, through various continuation applications, left the '007 patent specification with a single disclosed embodiment: a system for providing the automatic processing of loans, without human intervention, using computer equipment housed in a kiosk." }, { "docid": "7670178", "title": "", "text": "14, 1997 which recited a “circuit for producing video signals over video signals that are produced by a remote computer.” Id. The district court held “[without question, this indicates that Plaintiff understood that ‘overlay’ means having the ability to physically place one signal over another.” Id. In light of its claim construction, the district court found that none of the accused products infringes any of the asserted claims in the patents literally or under the doctrine of equivalents. The district court simply stated that there is no infringement of the patents because “the accused devices do not, but must, embody every element of any of the claims as properly interpreted.” Id. at 170. Apex timely appealed the district court’s final judgment and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION A. Standard of Review A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [and second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is a question of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1329 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. “Whether the language of a claim is to be interpreted according to 35 U.S.C. § 112, ¶ 6, i.e., whether a claim limitation is in means-plus-function format, is a matter of claim construction and is thus a question of law, reviewed de novo.” Kemco Sales, Inc. v. Control Papers Co., Inc., 208 F.3d 1352, 54 USPQ2d 1308, 1312 (Fed.Cir.2000). Step two, comparison of the claim to the accused device, requires a determination that every claim limitation, or its equivalent, be found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are" }, { "docid": "22947913", "title": "", "text": "that the appeal was filed. Hence operation of the supplemental assignment specifying the grant of the right to sue for past infringement is not being used to cure deficient standing. Further, in Enzo, this court had to determine whether an oral exclusive license in combination with a later nunc pro tunc written license could confer standing without the holder of the title being joined. We held that it could not. See Enzo, 134 F.3d at 1093, 45 USPQ2d at 1370-71. In the instant case, by contrast, the original assignment was written, and La Gard is not a separate entity from Masco because after the trial, La Gard merged with Masco and is now a division of Masco. Hence, we hold that standing was not, and is not, lacking on the part of either La Gard or Masco in this appeal. We, therefore, have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994), and Mas-Hamilton’s motion to dismiss for lack of jurisdiction is denied. II. Infringement A patent infringement analysis involves two steps. First, the court determines the scope and meaning of the asserted claims. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim construction is a question of law, reviewed non-deferentially on appeal. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (in banc) (holding “we review claim construction de novo on appeal”). Second, the properly construed claims are compared to the allegedly infringing device. See Read Corp. v. Portec, Inc., 970 F.2d 816, 821, 23 USPQ2d 1426, 1431 (Fed.Cfr.1992). This court reviews a trial court’s factual infringement determination for clear error. See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 936, 4 USPQ2d 1737, 1740 (Fed.Cir.1987) (in banc). Claim limitations drafted pursuant to 35 U.S.C. § 112, ¶ 6 are termed means-plus-function limitations. Section 112, ¶ 6 provides that such limitations “shall be construed to cover the corresponding structure ... described in the specification and equivalents thereof.” “The ‘means’ term in a means-plus-function limitation is essentially a generic reference for the corresponding structure disclosed" }, { "docid": "14229956", "title": "", "text": "statements in the patent specification and arguments that Fournier made during reexamination of the '726 patent, would reasonably lead a competitor to conclude that Fournier had “relinquished a product and process that involved either adding a surfactant by itself or by micronizing the fenofibrate on its own or by intimately mixing the separately micronized fenofibrate and surfactant.” Id. at 14-16. Having concluded that Fournier and Abbott had relinquished coverage of Novopharm’s process and thus could not prevail, the district court granted Novopharm’s motion for summary judgment of noninfringement. Fournier and Abbott now appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s grant of summary judgment de novo, reapplying the standard used by the district court. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together -with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Secondly,] the properly construed claims are compared to the allegedly infringing [product].” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. Step two, comparison of the claim to the accused product, requires a determination that every claim limitation or its equivalent can be found" }, { "docid": "14217359", "title": "", "text": "said first positive clutch to drive the first member of the first positive clutch. A jury found that Meritor literally infringed claims 14-19 of the '236 patent and that Meritor’s infringement was willful. With respect to Meritor’s counterclaims for invalidity and unenforceability, the jury found that the '236 patent was not invalid and the district court, after holding a separate bench trial for Meritor’s counterclaim of unenforceability, found no inequitable conduct. The district court also denied Meritor’s renewed motion for judgment as a matter of law or in the alternative for a new trial or remittitur, entered judgment against Meritor in the amount of $2,942,925, and issued a permanent injunction. Meritor appeals, arguing that the district court misconstrued claim 14, it failed to properly instruct the jury regarding claim construction, and that under a proper construction Meritor does not infringe. Meritor also argues that it is entitled to judgment in its favor, or a new trial, on the issues of invalidity and unen-forceability. We have jurisdiction under 28 U.S.C. § 1295(a)(1). DISCUSSION We review de novo a district court’s decision to grant or deny a motion for judgment as a matter of law (“JMOL”) by reapplying the JMOL standard. Markman v. Westview Instruments, Inc., 52 F.3d 967, 975, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). This court will reverse a denial of JMOL only “if the jury’s factual findings are not supported by substantial evidence or if the legal conclusions implied from the jury’s verdict cannot in law be supported by those findings.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). In making this determination, we draw all reasonable inferences in favor of the prevailing party without substituting our view of conflicting evidence for that of the jury. SIBIA Neurosciences, Inc. v. Cadus Pharm. Corp., 225 F.3d 1349, 1355, 55 USPQ2d 1927, 1930 (Fed.Cir.2000). “The denial of a motion for a new trial is a procedural issue not unique to patent law which we review under the law of the" }, { "docid": "12970679", "title": "", "text": "cross-motion that Fantasy included in the joint appendix on appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... and then the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed. Cir.1998) (en banc) (citations omitted). Claim construction is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1125, 227 USPQ 577, 589 (Fed.Cir.1985) (en banc). Finally, we review a district court’s decision declining to award attorney fees for an abuse of discretion. Pharmacia & Upjohn Co. v. Mylan Pharms., Inc., 182 F.3d 1356, 1359, 51 USPQ2d 1466, 1468 (Fed.Cir.1999). A. Claim Construction Fantasy argues that the “bonus points” limitation should be broadly construed to cover any points awarded in addition to those given in an actual football game. Fantasy contends that the plain meaning of the term “bonus” is “anything" }, { "docid": "7813540", "title": "", "text": "the claims of its patents were not invalid, concluding that, even if the evidence were construed “in the light most favorable to KVP, [KVP] cannot show by clear and convincing evidence that the” asserted claims were invalid. Slip op. at A33. Laitram appeals the district court’s grant of KVP’s summary judgment motion for non-infringement, arguing that the court’s claim construction was erroneous and that the existence of genuinely disputed fact issues precluded summary judgment of noninfringement under the doctrine of equivalents. KVP cross-appeals the district court’s grant of Laitram’s summary-judgment motion that the asserted claims are not invalid. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION A. Standard of Review Literal infringement involves a-two-step determination: the proper construction of the asserted claim and a determination whether the claim as properly construed reads on the accused product or method. Claim construction is a question of law, which we review de novo. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed.Cir.1998) (in banc). When construing a claim, a court principally consults the evidence intrinsic to the patent, namely, the claims themselves, the written description portion of the specification, and the prosecution history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83, 39 USPQ2d 1573, 1576-77 (Fed.Cir.1996). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Because the parties did not dispute the structure of the accused devices at the district court, or whether there is or is not infringement by those devices once the issue of claim construction is settled, KVP’s summary judgment motion for noninfringement did not implicate any issues of fact. See Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1278, 35 USPQ2d 1035, 1041 (Fed.Cir.1995). Instead, resolution of the motion turned solely on the legal question of the proper con struction of the claims." } ]

[ { "docid": "13277225", "title": "", "text": "committed no error in denying Chavez’s motion for a judgment of acquittal. We turn, then, to Chavez’s Apprendi claim. According to Apprendi, the constitution requires that “... any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” - U.S. at-, 120 S.Ct. at 2363; see United States v. Aguayo-Delgado, 220 F.3d 926, 930 (8th Cir.2000). Chavez was convicted of possession with intent to distribute methamphetamine, two counts of distribution of methamphetamine, and conspiracy to distribute methamphetamine. The statutory maximum for each of these crimes, even assuming the minimum quantities of methamphetamine found by the jury, is a life sentence. See 21 U.S.C. §§ 841(b)(1)(A) and 846. Therefore, because none of Chavez’s sentences exceeds the statutory maximum, Apprendi is inapplicable. See Aguayo-Delgado, 220 F.3d at 929-30 (upholding sentence based on judge’s findings of drug quantities where sentence was within range authorized by statute for defendants with prior convictions without regard to drug quantity); accord United States v. Hernandez-Guardado, 228 F.3d 1017, 1026-27 (9th Cir. 2000); United States v. Corrado, 227 F.3d 528, 541 (6th Cir.2000); United States v. Smith, 223 F.3d 554, 565-66 (7th Cir.2000). Cf. United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000) (holding Apprendi mandated reversal where only finding of drug quantity was by preponderance of the evidence by sentencing judge and sentence exceeded statutory maximum prescribed for minimal drug quantities). The judgment is affirmed. . The Honorable Harold D, Vietor, United States District Judge for the Southern District of Iowa. BRIGHT, Circuit Judge, concurring. I concur but write separately to once again express my view that the sentences imposed by the Sentencing Guidelines are often a waste of time and money. The sheer irrationality of the Sentencing Guidelines is graphically demonstrated by this case. What we have here is a forty-one-year-old man of Mexican descent and citizenship who has been heavily involved in drug trafficking but has committed no prior violent crimes. The district court followed the Guidelines and sentenced Chavez to life imprisonment. Chavez has a life expectancy of seventy-eight" } ]

[ { "docid": "13114", "title": "", "text": "than the twenty-year statutory maximum allowable for conspiracy to distribute methamphetamine regardless of drug quantity in 21 U.S.C. § 841(b)(1)(C). Thus, Pollard’s contention is foreclosed by our decision in United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000), where we held sentences “within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity are permissible under Apprendi ... even where the drug quantity was not charged in the indictment or found by the jury ... beyond a reasonable doubt.” Id. at 934. Likewise, Pollard’s five-year term of supervised release does not exceed the life term authorized under § 841(b)(1)(C), and thus does not violate Apprendi. See Aguayo-Delgado, 220 F.3d at 933; United States v. Scott, 243 F.3d 1103, 1108 (8th Cir.2001). Pollard contends Aguayo-Del-gado was wrongly decided, but one panel of this court must follow the decision of an earlier panel until overturned by the court en banc. See United States v. Ortega, 150 F.3d 937, 947 (8th Cir.1998). Last, Pollard raises concerns for the first time about the possible prison sentence he could receive if his supervised release is revoked. Because the district court sentenced Pollard according to drug quantity under § 841(b)(1)(B), Pollard contends he was convicted of a Class B felony and would face a term of three years in prison if the court revokes his supervised release. See 18 U.S.C. § 3583(e)(3). Pollard argues that if he had been sentenced without regard to drug quantity, he would have been convicted of a Class C felony and would face not more than two years in prison if supervised release is revoked. See id. Pollard’s asserts a sentence exceeding two years upon revocation of supervised release would violate Apprendi. As we have already explained, under Apprendi, Pollard could not have been sentenced to more than twenty years of imprisonment specified in 21 U.S.C. § 841(b)(1)(C). This default maximum corresponds to a Class C felony, permitting only a two year sentence if supervised release is revoked. See United States v. Rodgers, 245 F.3d 961, 966-67" }, { "docid": "21755722", "title": "", "text": "States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). The use of a judicially determined drug quantity as a basis for sentencing, however, is permissible so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). None of the defendants raised an Apprendi argument before the district court, and therefore we review their claims for plain error. United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (per curiam). When a defendant is convicted of multiple counts, however, a sentence assessed in violation of Apprendi does not necessarily constitute plain error because “[t]he [Federal Sentencing] Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count.” United States v. Sturgis, 238 F.3d 956, 960 (8th Cir.2001) petition for cert. filed, 70 U.S.L.W. 3239 (U.S. June 19, 2001) (No. 00-2584); see United States v. Bradford, 246 F.3d 1107, 1114 (8th Cir.2001) (explaining proper use of concurrent and consecutive sentencing according to U.S.S.G. § 5G1.2(e) and (d)). Sherman was sentenced to a term of imprisonment of 108 months. Because the statutory maximum for an indeterminate quantity of cocaine is 240 months, 21 U.S.C. § 841, his sentence does not violate Apprendi. See Chavez, 230 F.3d at 1091. Diaz was sentenced to 360 months for conspiracy, 240 months for distribution of cocaine, and 240 months for money laundering. Although Diaz’s 360-month sentence does exceed the 240-month statutory maximum, the sentence does not amount to plain error because under U.S.S.G. § 5G1 .2(d), the district court would have been required to run a portion of the drug sentences and the money laundering sentence consecutively to reach the guideline sentence of 360 months. See Sturgis, 238 F.3d at 960. Robert Lohr was sentenced to two concurrent 262-month terms of imprisonment on the conspiracy and money laundering charges. The conspiracy sentence exceeds the statutory maximum" }, { "docid": "10809773", "title": "", "text": "their sole purpose is not to investigate a crime.” Id. at 1176. There is no indication in the present case that the search was a subterfuge for a “general rummaging” for evidence. See id. at 1175 (citation omitted). Thus, the court did not clearly err in its finding that Hartje’s vehicle was inventoried pursuant to standard Conway Police Department procedure. III. Hartje contends that his sentence violates the dictates of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (any fact other than that of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and found beyond a reasonable doubt), because his sentencing range under the sentencing guidelines, determined partially through a four-level increase in the offense level pursuant to U.S.S.G. § 3Bl.l(a) for being a leader, was 210 to 262 months of imprisonment, a range which he contends exposed him to punishment exceeding the statutory maximum of 240 months to which he could be sentenced under 21 U.S.C. § 841(b)(1)(C) for an offense in which no drug quantity is specified in the indictment or jury verdict. See 21 U.S.C. § 841(b)(1)(C); United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir.2001). Hartje was sentenced only to 210 months, however. So long as the imposed sentence does not exceed the statutory maximum allowable for the crime, Apprendi is not implicated. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000); United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). Accordingly, this claim fails. Hartje argues that the court did not believe that it had the authority to depart downward under sentencing guideline § 5K2.13 for Hartje’s diminished mental capacity during the time he committed the crimes. We review the district court’s application of the sentencing guidelines de novo and its factual findings for clear error. United States v. Rohwedder, 243 F.3d 423, 425 (8th Cir.2001). Hartje’s counsel raised the possibility of a departure under § 5K2.13 and moved for a full psychiatric evaluation pri- or to sentencing. The court granted the" }, { "docid": "10809772", "title": "", "text": "search for incriminating evidence.” Id. at 1175. Hartje and both of his passengers were taken into custody while Hartje’s vehicle was parked on the side of a road paralleling a highway. Investigator Tapley testified during the suppression hearing that the “policy of .Conway Police Department is that anytime a vehicle is towed, that an inventory, a complete inventory be done on that vehicle before the wrecker service takes the vehicle,” and that “during training, this was what we were shown to do and how to do it.” We do not believe, as Hartje suggests, that the fact that the officers failed to outline more of the specifics of the towing policy renders the district court’s finding clearly erroneous, or that the fact that the officers’ motives may have been mixed invalidates the search for the purposes of the Fourth Amendment. “[W]hen the police conduct inventory searches according to ... standardized policies, they may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate a crime.” Id. at 1176. There is no indication in the present case that the search was a subterfuge for a “general rummaging” for evidence. See id. at 1175 (citation omitted). Thus, the court did not clearly err in its finding that Hartje’s vehicle was inventoried pursuant to standard Conway Police Department procedure. III. Hartje contends that his sentence violates the dictates of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (any fact other than that of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and found beyond a reasonable doubt), because his sentencing range under the sentencing guidelines, determined partially through a four-level increase in the offense level pursuant to U.S.S.G. § 3Bl.l(a) for being a leader, was 210 to 262 months of imprisonment, a range which he contends exposed him to punishment exceeding the statutory maximum of 240 months to which he could be sentenced under" }, { "docid": "10552996", "title": "", "text": "principle governs penalties for drug offenses listed in 21 U.S.C. § 841(a). United States v. Aguayo-Delgado, 220 F.3d 926, 930, 934 (8th Cir.), cert. denied, - U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). If an indictment or jury verdict fails to specify the quantity of drugs involved, sentencing is limited by 21 U.S.C. § 841(b)(1)(C), which provides a statutory maximum penalty of twenty years or, if the defendant has a prior felony drug conviction, thirty years. Id. at 930. Nevertheless, the sentence imposed in Aguayo-Delgado did not exceed the statutorily authorized range and, therefore, did not violate Apprendi. Id. In the present case, the indictments failed to specify any drug quantity, nor did the jury find the defendants responsible for any particular- quantity. Consequently, we must apply section 841(b)(1)(C) to determine whether any defendant’s sentence exceeded the applicable statutory maximum. Id.; United States v. Nicholson, 231 F.3d 445, 453 (8th Cir.2000). We easily dispense with the Ap-prendi challenges of defendants Bradford and Boswell. As both had prior felony drug convictions, their sentences of twenty-eight and thirty years, respectively, fall within the statutory maximum. Therefore, neither sentence warrants redetermination. Aguayo-Delgado, 220 F.3d at 934. In contrast, the sentences imposed on defendants Harrison and Andrews exceeded the statutory maximum. The district court imposed sentences of thirty-two years on Harrison and thirty-three years on Andrews. The record is unclear as to whether either had a prior felony drug conviction, and at this stage we will presume they did not — a presumption that may be rectified on resentencing if incorrect. Given the current state of the record, the statutory maximum for each sentence is twenty years. 21 U.S.C. § 841(b)(1)(C); Nicholson, 231 F.3d at 453. The government argues that the sentences of Harrison and Andrews are proper because they were, or could have been, imposed according to the “career offender” provision of the Sentencing Guidelines. U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 4B1.1 (2000). However, career offender sentences depend not only on the defendants’ criminal histories, but also on the calculation of drug quantities. Compare id. (basing career offender offense level" }, { "docid": "10552995", "title": "", "text": "drug sale” and may instead rely on defendant’s lack of any legitimate income source and involvement in drug trafficking to raise “the inference that the money wired ... represented proceeds from drug distribution.” See United States v. Eastman, 149 F.3d 802, 804 (8th Cir.1998) (quoting United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir.1990)). Although Harrison argues that the wire transfer represented money for funeral expenses and not the proceeds of drug dealing, the only mention of funeral expenses at trial was that a separate transfer occurred in November 1997, arranged by Andrews and Van Noort on Harrison’s behalf. III. SENTENCING AND APPRENDI Defendants argue that they are entitled to resentencing under Apprendi, in that both the indictment and the jury’s verdict failed to specify any drug quantities. In Apprendi, the Supreme Court held that any fact, other than a prior conviction, that “increases the penalty for a crime beyond the prescribed statutory maximum” must be included in the indictment and proven to the jury beyond a reasonable doubt. 120 S.Ct. at 2362-63. This principle governs penalties for drug offenses listed in 21 U.S.C. § 841(a). United States v. Aguayo-Delgado, 220 F.3d 926, 930, 934 (8th Cir.), cert. denied, - U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). If an indictment or jury verdict fails to specify the quantity of drugs involved, sentencing is limited by 21 U.S.C. § 841(b)(1)(C), which provides a statutory maximum penalty of twenty years or, if the defendant has a prior felony drug conviction, thirty years. Id. at 930. Nevertheless, the sentence imposed in Aguayo-Delgado did not exceed the statutorily authorized range and, therefore, did not violate Apprendi. Id. In the present case, the indictments failed to specify any drug quantity, nor did the jury find the defendants responsible for any particular- quantity. Consequently, we must apply section 841(b)(1)(C) to determine whether any defendant’s sentence exceeded the applicable statutory maximum. Id.; United States v. Nicholson, 231 F.3d 445, 453 (8th Cir.2000). We easily dispense with the Ap-prendi challenges of defendants Bradford and Boswell. As both had prior felony drug convictions, their sentences of" }, { "docid": "22808287", "title": "", "text": "this statutory maximum [of 240 months as provided in § 841(b)(1)(C)], his claim fails. [The defendant's] sentence was not enhanced beyond the statutory maximum by a factor not contained in the indictment or submitted to the jury.... The decision in Apprendi was specifically limited to facts which increase the penalty beyond the statutory maximum, and does not invalidate a court’s factual finding for the purposes of determining the applicable Sentencing Guide lines.”), cert. denied, 531 U.S. 1177, 121 S.Ct 1152, 148 L.Ed.2d 1014 (2001); United States v. Jones, 245 F.3d 645, 649 (7th Cir.2001) (“[B]ecause [the defendant's] sentence was forty-eight months below the statutory maximum for a defendant who has a prior felony drug conviction, Apprendi is inapplicable....”); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.) (“If the non-jury factual determination only narrows the sentencing judge’s discretion within the range already authorized by the offense of conviction, such as with the mandatory mínimums applied to [the defendant], then the governing constitutional standard is provided by McMillan .... [Bjecause [the defendant's sentences] are within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity, [they are] permissible under Apprendi ... even where the drug quantity was not charged in the indictment or found by the jury to have been beyond a reasonable doubt.”), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001) (noting in a case involving a sentence of 121 months, \"Apprendi has no application here. Apprendi dealt with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the instant case, the sentence imposed was nine years and eleven months below the statutory maximum.”); United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.) (noting in a case involving a 121-month sentence, \"[B]ecause the indictment set forth all the necessary elements of a crime as defined by 21 U.S.C. § 841(a) and 21 U.S.C. § 846, and because the minimum statutory range (within which [the defendant] was sentenced) does not specify a drug amount, neither the indictment nor the conviction" }, { "docid": "10809775", "title": "", "text": "motion and ordered an examination, which resulted in a report indicating that Hartje suffers from substance abuse and an adjustment disorder with depressed mood but that his mental capacity is not significantly diminished. During the sentencing hearing, the court briefly discussed Hartje’s statement that he had been diagnosed as bipolar manic depressive, which was not included in the pre-sentence report, and, immediately before declaring judgment, mentioned that it found no basis on which to depart from the guidelines range. In light of the district court’s granting of the motion for an examination and its discussion of Hartje’s possible mental illness, we conclude that the court was aware of its ability to depart downward if it determined that Hartje’s situation merited such relief. The court’s decision not to depart is virtually unreviewable on appeal. See United States v. Johnson, 169 F.3d 569, 573 (8th Cir.1999); United States v. Ruklick, 919 F.2d 95, 97 (8th Cir.1990). Accordingly, this claim fails. Hartje’s additional claim on this issue regarding a conflict of interest is without merit. Finally, Hartje contends that the district court erroneously sentenced him to 210 months of imprisonment on Count IV, the charge of possession of a firearm by a user of a controlled substance in violation of 21 U.S.C. § 922(g)(3), for which the statutory maximum is ten years. Although the district court noted the ten-year maximum on Count IV during the sentencing hearing, the final judgment it entered imposed a sentence of 210 months on all counts. Accordingly, the government agrees with Hartje that the sentence on Count IV must be vacated. The conviction is affirmed, as are the sentences imposed on Counts I, II, III, and V. The sentence imposed on Count IV is vacated, and the case is remanded to the district court for resentencing within the confínes of the statutory maximum on that count. . “Diminished Capacity (Policy Statement) A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity.” U.S.S.G. § 5K2.13 (2000)." }, { "docid": "13113", "title": "", "text": "PER CURIAM. A jury convicted Robert A. Pollard of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on the district court’s drug quantity finding, the district court was required to sentence Pollard to imprisonment for five to forty years, and to supervised release for at least four years. See id. § 841(b)(1)(B). Without the drug quantity finding, Pollard would have faced up to twenty years in prison and at least three years of supervised release. See id. § 841(b)(1)(C). The district court sentenced Pollard to eighty-seven months in prison and five years of supervised release. Because the indictment, jury instructions, and verdict form did not specify a drug quantity, Pollard contends his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (other than the fact of an earlier conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). We disagree. Pollard’s prison sentence is less than the twenty-year statutory maximum allowable for conspiracy to distribute methamphetamine regardless of drug quantity in 21 U.S.C. § 841(b)(1)(C). Thus, Pollard’s contention is foreclosed by our decision in United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000), where we held sentences “within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity are permissible under Apprendi ... even where the drug quantity was not charged in the indictment or found by the jury ... beyond a reasonable doubt.” Id. at 934. Likewise, Pollard’s five-year term of supervised release does not exceed the life term authorized under § 841(b)(1)(C), and thus does not violate Apprendi. See Aguayo-Delgado, 220 F.3d at 933; United States v. Scott, 243 F.3d 1103, 1108 (8th Cir.2001). Pollard contends Aguayo-Del-gado was wrongly decided, but one panel of this court must follow the decision of an earlier panel until overturned by the court en banc. See United States v. Ortega, 150 F.3d 937, 947 (8th Cir.1998). Last, Pollard" }, { "docid": "9699913", "title": "", "text": "overturned lightly,” United States v. Sykes, 977 F.2d 1242, 1247 (8th Cir.1992). The application of these principles to the instant case leads us to conclude that the jury was not unreasonable in finding Mr. Ortiz and Mr. Martinez guilty based on the evidence before it. II. Mr. Ortiz also argues that the trial court erred when it declined to submit the question of drug quantity to the jury. In making this argument, he relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that “any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Because the maximum penalty for an offense under 21 U.S.C. § 841(a)(1) increases according to drug quantity, Mr. Ortiz contends that the trial court was obligated under Apprendi to let the jury determine the amount of cocaine attributable to him. We disagree. We have explained previously that “[t]he rule of Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury’s verdict,” United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). In this case, the trial court gave Mr. Ortiz a sentence of 63 months of imprisonment, which is less than the 20-year maximum that the statute authorizes. See 21 U.S.C. § 841(b)(1)(C). Apprendi therefore has no application here. III. Mr. Ortiz asserts that the trial court incorrectly refused to grant him either a two-or four-level reduction to his sentence pursuant to U.S.S.G. § 3B1.2. Under this provision, a sentencing court may decrease the offense level of a defendant if it finds that the defendant is only a minor or minimal participant in the criminal activity. Mr. Ortiz maintains that he deserves a lower sentence than the one that the trial court gave him because the evidence at trial demonstrated, at most, that he played only a small part in the sale of cocaine to the" }, { "docid": "19676821", "title": "", "text": "between 121 and 151 months. The court sentenced Webb to 130 months’ imprisonment. At a later hearing, the court found that Rey’s prior Illinois state conviction qualified as a felony drug offense and that he was subject to the mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1)(A). Over Rey’s objection, he was sentenced to 240 months’ imprisonment. II. Webb and Rey argue that the district court erred at sentencing by applying a preponderance of the evidence standard to determine drug quantity in excess of that found by the jury beyond a reasonable doubt. We review this issue de novo, in light of our case law interpreting 21 U.S.C. § 841(b)(1) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A preponderance of evidence standard of proof applies to judicial fact finding at sentencing, a standard that satisfies both the Fifth Amendment’s guarantee to due process and the Sixth Amendment right to trial by jury. United States v. Cole, 537 F.3d 923, 929 (8th Cir.2008). Drug type and quantity determine the statutory sentencing range in cases charged under 21 U.S.C. §§ 841 and 846, with the statutory maximum being based on the amount a jury finds beyond a reasonable doubt. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000). The government, however, is not required to prove quantity to convict a defendant. United States v. Rolon-Ramos, 502 F.3d 750, 755-56 (8th Cir.2007). Rather, if the government wishes to seek a sentence that exceeds the statutory sentencing range for an indeterminate amount of drugs, “then [it] must charge the facts giving rise to the increased sentence in the indictment and must prove those facts to the jury beyond a reasonable doubt.” Aguayo-Delgado, 220 F.3d at 933. Accordingly, a district court may impose a sentence based on a drug quantity determination greater than that found by the jury so long as the sentence does not exceed the statutory maximum of the convicted offense and the district court’s calculation is supported by sufficient evidence. United States v. Serrano-Lopez, 366 F.3d 628, 638 (8th Cir. 2004);" }, { "docid": "21738115", "title": "", "text": "argued that then-sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court relied on drug quantities it determined using the preponderance of the evidence standard, not quantities proved to the jury beyond a reasonable doubt. Under Apprendi, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Use of judicially determined drug quantity as a basis for sentencing is permissible, however, so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000). In our opinion affirming the defendants’ sentences, we recognized that because Diaz’s 360-month sentence and Lohr’s 262-month sentence exceeded the 240-month statutory maximum for an indeterminate quantity of cocaine, the sentences ran afoul of Apprendi. Applying the plain error standard of review, we affirmed their sentences because under U.S.S.G. § 5G1.2(d), the district court would have been required to run a portion of the drug sentences and the money laundering sentences consecutively to reach the properly calculated total punishment under the guidelines. Accordingly, we concluded that Diaz’s and Lohr’s substan tial rights were not affected by their sentences. United States v. Sherman, 262 F.3d 784, 792 (8th Cir.2001). In so holding, the panel relied on United States v. Sturgis, 238 F.3d 956 (8th Cir.2001) in which we held that the defendant’s substantial rights were not violated where the Apprendi error could have been corrected by running the sentences consecutively under § 5G1.2(d). Id. at 960-61. Diaz and Lohr filed a petition for rehearing en banc, arguing that the panel in their appeal was not bound by Sturgis because two subsequently decided cases, United States v. Bradford, 246 F.3d 1107 (8th Cir.2001) and United States v. Hollingsworth, 257 F.3d 871 (8th Cir.2001), remanded to the district court for resen-tencing under similar circumstances. We vacated the panel decision as to Diaz and Lohr and granted rehearing en banc" }, { "docid": "4078690", "title": "", "text": "drug conviction were ele- merits of the indicted crimes that must be proven beyond a reasonable doubt. 1. Failure to Instruct on the Amount of Drugs Possessed The Court rejects Appellant’s arguments. In Apprendi, 120 S.Ct. at 2362-63, the Supreme Court stated that the Constitution requires any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt, (emphasis added). This Circuit has had the opportunity to interpret the Supreme Court’s decision and has held that Apprendi does not apply when a specific factual finding “only narrows the sentencing judge’s discretion within the range already authorized by the offense of conviction.” United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000). See also, United States v. Robinson, 241 F.3d 115, 121 (1st Cir.2001) (“[S]entence-enhancing facts may may be found by the judge under a preponderance-of-the-evidence standard as long as those facts do not result in a sentence that exceeds the original statutory maximum.”). Franklin was charged with three violations of 21 U.S.C. § 841(a)(1) for possession with the intent to distribute cocaine base, powder cocaine, and heroin. Without considering his prior drug conviction, the maximum sentence that Franklin faced on each count was 20 years regardless of drug quantity. See 21 U.S.C. § 841(b)(1)(C). Since Franklin was sentenced to twenty years concurrent on each count, his sentence was within the statutory maximum and there was no Apprendi violation. See Aguayo-Delgado, 220 F.3d at 933-34. When Franklin’s prior drug conviction is considered, the statutory maximum sentence on each count would have been 30 years, see § 841(b)(1)(C), and a prior drug conviction need not be proven to the jury beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2362-63; United States v. Rush, 240 F.3d 729, 731 (8th Cir.2001). E. Alleged Error in Sentencing Appellant to 20 Years on Count II and Count III of the Indictment Appellant argues the district court erred in sentencing him to prison terms of 20 years under Count II and Count III of the indictment based on" }, { "docid": "22808286", "title": "", "text": "- U.S. -, 122 S.Ct. 130, - L.Ed.2d - (2001); United States v. Williams, 235 F.3d 858, 863 (3d Cir.2000) (\"First and foremost, though the District Court’s finding regarding the amount of drugs substantially increased the possible statutory maximum sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to [the defendant’s] sentence, because the sentence actually imposed (seven years and one month) was well under the original statutory maximum of 20 years.”), cert. denied, - U.S. -, 122 S.Ct. 49, - L.Ed.2d - (2001); United States v. Obi, 239 F.3d 662, 667 (4th Cir.2001) (concluding that a sentence of 200 months’ imprisonment \"does not offend the standards set forth in Apprendi, despite the fact that [the defendant's] sentence is based, in part, on factual findings of drug quantity made by the sentencing judge by a preponderance of the evidence”), cert. denied, - U.S. -, 122 S.Ct. 86, - L.Ed.2d - (2001); United States v. Doggett, 230 F.3d 160, 165-66 (5th Cir.2000) (\"As [the defendant's] sentence of 235 months falls short of this statutory maximum [of 240 months as provided in § 841(b)(1)(C)], his claim fails. [The defendant's] sentence was not enhanced beyond the statutory maximum by a factor not contained in the indictment or submitted to the jury.... The decision in Apprendi was specifically limited to facts which increase the penalty beyond the statutory maximum, and does not invalidate a court’s factual finding for the purposes of determining the applicable Sentencing Guide lines.”), cert. denied, 531 U.S. 1177, 121 S.Ct 1152, 148 L.Ed.2d 1014 (2001); United States v. Jones, 245 F.3d 645, 649 (7th Cir.2001) (“[B]ecause [the defendant's] sentence was forty-eight months below the statutory maximum for a defendant who has a prior felony drug conviction, Apprendi is inapplicable....”); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.) (“If the non-jury factual determination only narrows the sentencing judge’s discretion within the range already authorized by the offense of conviction, such as with the mandatory mínimums applied to [the defendant], then the governing constitutional standard is provided by McMillan .... [Bjecause [the defendant's sentences] are within" }, { "docid": "6020883", "title": "", "text": "equal protection by punishing crack cocaine offenses more severely than offenses involving other forms of cocaine. He further contends that he was denied effective assistance of trial counsel and that his conviction was based on insufficient evidence. We find Woods’ arguments to be without merit and affirm. In Apprendi, the Supreme Court held that any fact other than a prior conviction that increases a penalty for a crime beyond the prescribed statutory maximum must be charged and proven beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. We have found that Apprendi is satisfied where the indictment alleged drug quantity, the jury made a finding of drug quantity, and the district court sentenced the defendant consistent with that finding. United States v. Sheppard, 219 F.3d 766, 769 (8th Cir.2000), cert, denied, — U.S. —, 121 S.Ct. 1208, 149 L.Ed.2d 121 (2001). Sentences not exceeding the statutorily authorized range do not violate Apprendi. United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). Here, Woods was indicted for and convicted of drug charges that specified drug quantities. Also, the provision under which he was sentenced provides a statutory maximum of life imprisonment, which his 210-month concurrent sentences are obviously well within. 21 U.S.C. § 841(b)(1)(A). Woods concedes as much, yet asserts that the statute under which he was convicted was facially unconstitutional because it requires no drug quantity to be proven. In Apprendi, the Court was not concerned with statutory structure but with sentencing. See 530 U.S. at 490, 120 S.Ct. 2348. Sentencing pursuant to section 841(b)(1)(A) does require proof of drug quantity. E.g., United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir.2001); United States v. Nicholson, 231 F.3d 445, 453 (8th Cir.2000). Woods’ sentences do not transgress Apprendí, see Sheppard, 219 F.3d at 769, and we decline his invitation to revisit Aguayo-Delgado, see United States v. Maynie, 257 F.3d 908, 918 (8th Cir.2001) (“We are obligated to follow what the Supreme Court has said, not guess what it might say in the future.”); United States" }, { "docid": "22034975", "title": "", "text": "review is for plain error only. See Fed.R.Crim.P. 52(b); United States v. Lewis, 235 F.3d 215, 219 n. 4 (4th Cir.2000) (citing United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Meshack, 225 F.3d 556, 575 (5th Cir.2000)). To reverse, then, we must identify a plain error that affected Pratt’s substantial rights and which “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Moore, 11 F.3d at 481. In Apprendi the Supreme Court announced a new rule of constitutional law: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63. Although Apprendi itself involved a hate crimes statute, courts have applied the rule announced in Apprendi to drug amounts. See, e.g., United States v. Aguayo-Delgado, 220 F.3d 926, 932-33 (8th Cir.2000). The Apprendi rule only applies, however, “where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury’s verdict.” Aguayo-Delgado, 220 F.3d at 933. Under McMillan v. Pennsylvania, 477 U.S. 79, 81-93, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the legislature may “raise the minimum penalty associated with a crime based on non-jury factual findings, as long as the penalty is within the range specified for the crime for which the defendant was convicted.” Aguayo-Delgado, 220 F.3d at 934. At sentencing, the district court held Pratt responsible for the fifteen kilograms of cocaine found in the trunk of the rental car. Attributing these drugs to Pratt, the court sentenced Pratt under 21 U.S.C. § 841 (b)(1) (A) (ii) (1994) (which authorizes a term of imprisonment from ten years to life and a term of supervised release of at least five years) to 136 months imprisonment and five years supervised release. Because the amount of drugs attributed to Pratt was not determined by the jury, Pratt maintains that the sentence imposed on him violates the Apprendi rule. Specifically, he claims that 21 U.S.C. § 841(b)(1)(C)" }, { "docid": "15386139", "title": "", "text": "and convicted by a jury under 21 U.S.C. § 845a(a) (now 21 U.S.C. § 860), which does not require a specific quantity of drugs. The statutory maximum for an offense under Section 845a(a) is 480 months. See 21 U.S.C. § 860(a) (maximum punishment under Section 860(a), formerly Section 845a(a), is twice the punishment authorized by Section 841(b)); 21 U.S.C. § 841(b)(1)(C) (maximum punishment for offense under Section 841(a)(1) is 240 months). Because defendant’s term of imprisonment on Count 6 is less than the statutory maximum, it must stand under Apprendi. The Tenth Circuit recently explained: we find that the indictment was legally sufficient and that [defendant’s] sentence, because it falls within the minimum statutory range set forth in 21 U.S.C. § 841(b)(1)(C), is supported by the facts alleged and proven. In so doing, we join several of our sister circuits, which have made similar findings. For example, the Fifth Circuit has held that where a defendant is charged under 21 U.S.C. § 841(a), found guilty beyond a reasonable doubt, and sentenced within the minimum statutory range of 0-20 years, there is no Apprendi violation for a failure to charge and prove the amount of drugs involved. Further, the court held that, where a non-jury factual determination is used to enhance a sentence within the minimum statutory range, Apprendi is not violated. United States v. Meshack, 225 F.3d 556, 576 (5th Cir.2000); accord United States v. Hernandez Guardado, 228 F.3d 1017, 1027 (9th Cir.2000) (holding that a fact enhancing a defendant’s sentence within a minimum statutory range does not trigger Apprendi and need not be decided by a jury applying the reasonable doubt standard); United States v. Corrado, 227 F.3d 528, 542 (6th Cir.2000) (same); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000) (holding that it is not a violation of Ap-prendi for a judge-found fact to alter a defendant’s sentence for violating 21 U.S.C. § 841(a) so long as that alteration remains within the minimum statutory range established by 21 U.S.C. § 841(b)(1)(C)). United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.2001); see United States v. Sullivan," }, { "docid": "6020884", "title": "", "text": "(2000). Here, Woods was indicted for and convicted of drug charges that specified drug quantities. Also, the provision under which he was sentenced provides a statutory maximum of life imprisonment, which his 210-month concurrent sentences are obviously well within. 21 U.S.C. § 841(b)(1)(A). Woods concedes as much, yet asserts that the statute under which he was convicted was facially unconstitutional because it requires no drug quantity to be proven. In Apprendi, the Court was not concerned with statutory structure but with sentencing. See 530 U.S. at 490, 120 S.Ct. 2348. Sentencing pursuant to section 841(b)(1)(A) does require proof of drug quantity. E.g., United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir.2001); United States v. Nicholson, 231 F.3d 445, 453 (8th Cir.2000). Woods’ sentences do not transgress Apprendí, see Sheppard, 219 F.3d at 769, and we decline his invitation to revisit Aguayo-Delgado, see United States v. Maynie, 257 F.3d 908, 918 (8th Cir.2001) (“We are obligated to follow what the Supreme Court has said, not guess what it might say in the future.”); United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997) (“One panel may not overrule another”). Woods further argues that his sentences are improper because, at sentencing, the district court took into account drug amounts specified in charges of which he had been acquitted, holding him responsible for such quantities based on a preponderance of the evidence. However, “even acquitted conduct can be considered when determining a sentence under the Sentencing Guidelines, so long as that conduct has been proved ... by a preponderance of the evidence.” United States v. Madrid, 224 F.3d 757, 762 (8th Cir.2000). We therefore reject this claim. Next, Woods presents an equal protection challenge, arguing that 21 U.S.C. § 841(b) disparately punishes drug offenses involving crack cocaine as compared to those involving other cocaine forms. We have found this premise to be without merit on numerous occasions and do so here as well. E.g., United States v. Patterson, 258 F.3d 788, 791 (8th Cir.2001). We also refrain from entertaining Woods’ ineffective assistance of counsel claim at this stage. Except where a miscarriage" }, { "docid": "21738114", "title": "", "text": "WOLLMAN, Chief Judge. Fortino Diaz and Robert' Lohr (Lohr) appeal their sentences that resulted from their convictions of various crimes committed in furtherance of a conspiracy to distribute cocaine and methamphetamine. A panel of this court originally affirmed the sentences, but we granted rehearing en banc in order to resolve an apparent conflict among our cases. We now reinstate the panel opinion. I. Diaz and Lohr were indicted and tried along with two other defendants, Daniel Sherman and Vanessa Lohr. After trial in the district court, all the defendants were convicted of conspiracy to distribute cocaine and methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A-B) and 846 and aiding and abetting money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A) arid (2). Diaz was also convicted of one count of attempting to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Diaz was sentenced to 360 months’ imprisonment and Robert Lohr was sentenced to 262 months. All of the defendants appealed their convictions and sentences. Sherman, Diaz and Lohr argued that then-sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court relied on drug quantities it determined using the preponderance of the evidence standard, not quantities proved to the jury beyond a reasonable doubt. Under Apprendi, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Use of judicially determined drug quantity as a basis for sentencing is permissible, however, so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000). In our opinion affirming the defendants’ sentences, we recognized that because Diaz’s 360-month sentence and Lohr’s 262-month sentence exceeded the 240-month statutory maximum for an indeterminate quantity of cocaine, the sentences ran afoul of Apprendi. Applying the plain error standard of review, we affirmed their sentences because under U.S.S.G. § 5G1.2(d)," }, { "docid": "10809774", "title": "", "text": "21 U.S.C. § 841(b)(1)(C) for an offense in which no drug quantity is specified in the indictment or jury verdict. See 21 U.S.C. § 841(b)(1)(C); United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir.2001). Hartje was sentenced only to 210 months, however. So long as the imposed sentence does not exceed the statutory maximum allowable for the crime, Apprendi is not implicated. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000); United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). Accordingly, this claim fails. Hartje argues that the court did not believe that it had the authority to depart downward under sentencing guideline § 5K2.13 for Hartje’s diminished mental capacity during the time he committed the crimes. We review the district court’s application of the sentencing guidelines de novo and its factual findings for clear error. United States v. Rohwedder, 243 F.3d 423, 425 (8th Cir.2001). Hartje’s counsel raised the possibility of a departure under § 5K2.13 and moved for a full psychiatric evaluation pri- or to sentencing. The court granted the motion and ordered an examination, which resulted in a report indicating that Hartje suffers from substance abuse and an adjustment disorder with depressed mood but that his mental capacity is not significantly diminished. During the sentencing hearing, the court briefly discussed Hartje’s statement that he had been diagnosed as bipolar manic depressive, which was not included in the pre-sentence report, and, immediately before declaring judgment, mentioned that it found no basis on which to depart from the guidelines range. In light of the district court’s granting of the motion for an examination and its discussion of Hartje’s possible mental illness, we conclude that the court was aware of its ability to depart downward if it determined that Hartje’s situation merited such relief. The court’s decision not to depart is virtually unreviewable on appeal. See United States v. Johnson, 169 F.3d 569, 573 (8th Cir.1999); United States v. Ruklick, 919 F.2d 95, 97 (8th Cir.1990). Accordingly, this claim fails. Hartje’s additional claim on this issue regarding a conflict of interest is without merit. Finally, Hartje contends" } ]

[ { "docid": "7668159", "title": "", "text": "marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punish ment violative of the Eighth Amendment.”)- Indeed, in Gregg v. Georgia, when the Supreme Court lifted what had become Furman’s de facto moratorium on the death penalty, it did so with the understanding that such punishment should serve these “two principal social purposes.” 428 U.S. at 183, 96 S.Ct. 2909. Since that time, the Supreme Court has harkened back to these twin purposes to guide its evaluation of challenges to the death penalty under the Eighth Amendment. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 441, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (“[CJapital punishment is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes.”). They are bedrock principles of the Constitution’s promise to not permit the infliction of cruel and unusual punishment by the State. A. Arbitrariness in California’s Death Penalty System California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. For every one inmate executed by California, seven have died on Death Row, most from natural causes. The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future. Even when executions do resume, the current population of Death Row is so enormous that, realistically, California will still be unable to execute the substantial majority of Death Row inmates. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next" } ]

[ { "docid": "18146295", "title": "", "text": "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”); id. at 220-21, 96 S.Ct. 2909 (White, J., concurring) (“In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily, wantonly and freakishly, and so infrequently that any given death sentence was cruel and unusual.” (footnotes omitted)). The Court in Gregg held that the amended Georgia statutes — which provided new substantive standards to guide the fact-finder’s selection of punishment and new procedures, such as bifurcated guilt and penalty trials — met the concerns expressed in Furman. Id. at 206-07, 96 S.Ct. 2909 (plurality opinion); id. at 208, 220-26, 96 S.Ct. 2909 (White, J., concurring). We have held that Teague bars a delay-based Lackey claim founded on the Supreme Court’s decisions in Furman and Gregg. In Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir.2010), the petitioner cited Furman and Gregg in support of his argument that “his four sentences in combination with his twenty-five years on death row satisfied any need for retribution and deterrence and that any penalty beyond such punishment violates the Eighth Amendment.” We noted that we previously had determined, “in the context of AEDPA, that ‘[t]he Supreme Court has never held that execution after a long tenure on death row is cruel and unusual punishment.’ ” Id. (alteration in original) (quoting Allen v. Omoski, 435 F.3d 946, 958 (9th Cir.2006)). We concluded that “a state court considering [the petitioner’s] Eighth Amendment claim at the time his conviction became final would not have felt compelled by existing precedent to conclude that the rule sought was required by the Constitution.” Id. at 998-99. Smith arguably controls here. Although the conviction in Smith became final. in 1986 and Petitioner’s conviction became final in 2003, both convictions became final well after the Supreme" }, { "docid": "19794249", "title": "", "text": "Stewart, 134 F.3d 1368 (9th Cir.1998), the Supreme Court has made clear that “the imposition of the death penalty must serve legitimate and substantial penological goals in order to survive Eighth Amendment scrutiny,” and it must serve those goals more effectively than a less severe punishment. Id. at 1370 (B. Fletcher, J., dissenting) (citing Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Specifically, a capital sentence may be imposed when it is the only way to express “society’s moral outrage at particularly offensive conduct” and functions as an effective deterrent. Id. Where the death penalty ceases realistically to further these purposes ... its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. Furman v. Georgia, 408 U.S. 238, 312, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring). Smith has suffered 27 years on death row, living in solitary confinement and under the constant threat of execution. See Furman v. Georgia, 408 U.S. 238, 288, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (“[T]he prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.”); In re Medley, 134 U.S. 160, 172, 10 S.Ct. 384, 33 L.Ed. 835 (1890) (waiting for an execution without knowing when it is to take place is “one of the most horrible feelings to which [a person] can be subjected”). Executing Smith after all this time would go far beyond what is necessary to satisfy society’s moral outrage over his horrible crimes. It is hard to see how Smith’s execution today would have any deterrent effect. See Furman, 408 U.S. at 302, 92 S.Ct. 2726 (Brennan, J., concurring) (“[The] validity[of the death penalty] depends upon the existence of a system in which the punishment of death is invariably and swiftly imposed.”). Executing Smith would not advance the" }, { "docid": "18146296", "title": "", "text": "Court’s decisions in Furman and Gregg. In Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir.2010), the petitioner cited Furman and Gregg in support of his argument that “his four sentences in combination with his twenty-five years on death row satisfied any need for retribution and deterrence and that any penalty beyond such punishment violates the Eighth Amendment.” We noted that we previously had determined, “in the context of AEDPA, that ‘[t]he Supreme Court has never held that execution after a long tenure on death row is cruel and unusual punishment.’ ” Id. (alteration in original) (quoting Allen v. Omoski, 435 F.3d 946, 958 (9th Cir.2006)). We concluded that “a state court considering [the petitioner’s] Eighth Amendment claim at the time his conviction became final would not have felt compelled by existing precedent to conclude that the rule sought was required by the Constitution.” Id. at 998-99. Smith arguably controls here. Although the conviction in Smith became final. in 1986 and Petitioner’s conviction became final in 2003, both convictions became final well after the Supreme Court’s decisions in Furman and Gregg. Both Petitioner here and the petitioner in Smith asserted that Furman created a constitutional rule holding that extended delay in carrying out an execution violates the Eighth Amendment because it serves no retributive or deterrent purpose. We are bound by Smith to conclude that Teague bars Petitioner’s claim to the extent that his claim is the same as the petitioner’s claim in Smith. On the other hand, both the district court and the parties have portrayed Petitioner’s claim as different than an ordinary Lackey claim like the one discussed in Smith. An ordinary Lackey claim focuses on the delay experienced by the petitioner personally, without regard to the fate of others; and it asserts the legal theory that his continued imprisonment on Death. Row does not meet the purposes of “retribution and deterrence.” Smith, 611 F.3d at 998. Petitioner’s amended claim 27, by contrast, focuses on the delay inherent in the system itself and on the fate of capital prisoners generally, without particular regard to Petitioner’s personal situation; and" }, { "docid": "16964228", "title": "", "text": "majority. Thus, with reference to his argument that he is being discriminated against on the basis of the race of his victim, equal protection interests are not being implicated. Petitioner also fails to state a claim under the Eighth Amendment. It is clear from the decisions of the Supreme Court that the death penalty is not per se cruel and unusual in violation of the Eighth Amendment. Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the cruel and unusual punishments clause was interpreted as applicable to contentions that a punishment involved unnecessary pain and suffering, that it was so unique as not to serve a humane purpose, or so excessive as not to serve a valid legislative purpose. See Furman, 408 U.S. at 330-33, 92 S.Ct. at 2772-74 (Marshall, J., concurring). In other words, Eighth Amendment jurisprudence prior to Fur-man entailed an inquiry into the nexus between the offense and punishment; that punishment which was found to be excessive was deemed to violate Eighth Amendment concerns. The Supreme Court has determined as a matter of law that where certain aggravating features are present the infliction of the death penalty is not violative of the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In the instant case, petitioner’s race of the victim argument does not address traditional Eighth Amendment concerns. His argument does not entail — nor could he seriously advance— any contention that his penalty is disproportionate to his offense, that his penalty constitutes cruel and unusual punishment, or that his penalty fails to serve any valid legislative interest. What petitioner does contend is that the Georgia system allows for an impermissible value judgment by the actors within the system — that white life is more valuable than black life — and, as a practical matter, that the Georgia system allows for a double standard for sentencing. Certainly, such allegations raise life and liberty interests of the petitioner. Furthermore, such allegations speak not to the rationality of the process but to the values inherent in the" }, { "docid": "19794221", "title": "", "text": "an ideal example of one which would benefit from [] further study.” Id. at 1047, 115 S.Ct. 1421. Lackey claims are grounded in the constitutional principles that constrain the death penalty. While the death penalty can be justified by “retribution and deterrence of capital crimes by prospective offenders,” an execution “cannot be so totally without penological justification that it results in the gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). Justice White, concurring in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), opined that At the moment that [a proposed execution] ceases realistically to further these purposes [of deterrence and the coherent expression of moral outrage], the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. Furman, 408 U.S. at 312, 92 S.Ct. 2726 (White, J., concurring). Smith contends that his four sentences in combination with his twenty-five years on death row satisfied any need for retribution and deterrence and that any penalty beyond such punishment violates the Eighth Amendment. Montana responds that Smith asks for a new rule of constitutional law. Courts may not announce new rules of constitutional law on habeas review. Teague v. Lane, 489 U.S. 288, 316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (“[H]abeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated.”). A case announces a new rule “when it breaks new ground or imposes a new obligation on the States or the Federal Government ... [or] if the result was not dictated by precedent existing at the time the" }, { "docid": "19794248", "title": "", "text": "prevent this court from holding that execution after a long tenure on death row violates the Eighth Amendment. The court may reach the merits of Smith’s Lackey claim. We have always found a way to avoid addressing Lackey claims on the merits, usually by invoking AEDPA’s bar against second or successive petitions. See, e.g., Allen v. Omoski, 435 F.3d 946, 948 (9th Cir.2006); LaGrand v. Stewart, 170 F.3d 1158, 1160 (9th Cir.1999); Gerlaugh v. Stewart, 167 F.3d 1222, 1223 (9th Cir.1999); Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir.1998); but see McKenzie v. Day, 57 F.3d 1461,1467 (9th Cir.1995) (declining to stay execution because it was “highly unlikely that McKenzie’s Lackey claim would be successful if litigated to its conclusion.”). AEDPA does not apply here, see Maj. Op. at 986, and neither does Teague. We are out of excuses. There is a strong case to be made that long stays on death row violate the Eighth Amendment. As I explained more fully in my dissent to the denial of the stay in Ceja v. Stewart, 134 F.3d 1368 (9th Cir.1998), the Supreme Court has made clear that “the imposition of the death penalty must serve legitimate and substantial penological goals in order to survive Eighth Amendment scrutiny,” and it must serve those goals more effectively than a less severe punishment. Id. at 1370 (B. Fletcher, J., dissenting) (citing Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Specifically, a capital sentence may be imposed when it is the only way to express “society’s moral outrage at particularly offensive conduct” and functions as an effective deterrent. Id. Where the death penalty ceases realistically to further these purposes ... its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. Furman v. Georgia, 408 U.S. 238, 312, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring). Smith has suffered 27" }, { "docid": "19794220", "title": "", "text": "newspaper consisted of two innocuous statements about attorneys’ fees. Smith also contends that Judge Larson was influenced by incendiary articles in the press and by another judge who had been recused from hearing Smith’s case and who shared office space with Judge Larson. Smith tenders no evidence, aside from speculation, that Judge Larson was influenced by the press or by another judge. Because Smith has failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing, the district court did not abuse its discretion in declining to hold one. 3 Finally, Smith argues that his continued incarceration violates the Eighth Amendment. Such a claim is termed a “Lackey” claim after Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995), a death penalty case that the Supreme Court declined to hear. In Lackey, the petitioner brought an Eighth Amendment claim similar to the one Smith brings now. Justice Stevens, joined by Justice Breyer, issued a memorandum “respecting the denial of certiorari” but stating that the Eighth Amendment claim “seems an ideal example of one which would benefit from [] further study.” Id. at 1047, 115 S.Ct. 1421. Lackey claims are grounded in the constitutional principles that constrain the death penalty. While the death penalty can be justified by “retribution and deterrence of capital crimes by prospective offenders,” an execution “cannot be so totally without penological justification that it results in the gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). Justice White, concurring in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), opined that At the moment that [a proposed execution] ceases realistically to further these purposes [of deterrence and the coherent expression of moral outrage], the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns" }, { "docid": "18146278", "title": "", "text": "In the district court’s view, “much of the delay in California’s post[-]conviction review process is created by the State itself.” Id. at 1066. Relying primarily on the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), the district court held that the “systemic delay and dysfunction” in California’s post-conviction review process was unconstitutionally “arbitrary,” because a capital prisoner’s selection for execution “will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.” Jones, 31 F.Supp.3d at 1061-63. The court concluded that, “where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State’s process violates the Eighth Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one of execution, be timely and rationally carried out.” Id. at 1067. The district court also held that the deferential standards of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), found in 28 U.S.C. § 2254(d), did not apply because the state courts had never ruled on the systemic claim. Jones, 31 F.Supp.3d at 1067-68, 1068 n. 23. The court acknowledged that petitioners ordinarily must exhaust their claims under 28 U.S.C. § 2254(b)(1)(A), but held that Petitioner was excused from the exhaustion requirement because “circumstances exist that render [the State’s corrective] process ineffective to protect the rights of the applicant,” id. § 2254(b)(1)(B)(ii). Jones, 31 F.Supp.3d at 1067-68. In particular, “Requiring [Petitioner] to return to the California Supreme Court to exhaust his claim would only compound the delay that has already plagued his post-conviction review process.” Id. at 1068. The court next held that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which generally prohibits federal courts from announcing a new rule of constitutional law in" }, { "docid": "18146297", "title": "", "text": "Court’s decisions in Furman and Gregg. Both Petitioner here and the petitioner in Smith asserted that Furman created a constitutional rule holding that extended delay in carrying out an execution violates the Eighth Amendment because it serves no retributive or deterrent purpose. We are bound by Smith to conclude that Teague bars Petitioner’s claim to the extent that his claim is the same as the petitioner’s claim in Smith. On the other hand, both the district court and the parties have portrayed Petitioner’s claim as different than an ordinary Lackey claim like the one discussed in Smith. An ordinary Lackey claim focuses on the delay experienced by the petitioner personally, without regard to the fate of others; and it asserts the legal theory that his continued imprisonment on Death. Row does not meet the purposes of “retribution and deterrence.” Smith, 611 F.3d at 998. Petitioner’s amended claim 27, by contrast, focuses on the delay inherent in the system itself and on the fate of capital prisoners generally, without particular regard to Petitioner’s personal situation; and it asserts the legal theory that the delay in carrying out executions among all capital prisoners represents a form of arbitrary infliction of the death penalty. In short, the parties argue that, although both types of claims — the ordinary individualized claim and Petitioner’s systemic claim— stem from Furman and Gregg, the claims present materially different legal theories. Our recent decision in Andrews casts some doubt on that conclusion. See 798 F.3d at 789-90 (“[T]he state argues that a Lackey claim is an individual challenge, ... while [the district court’s opinion in] Jones was based on the theory that the California system itself creates the constitutional infirmity_ We disagree.”). But, for purposes of the Teague analysis, we need not decide whether the claims differ. As we explain below, even if Petitioner’s claim rests on a legal theory different than the theory advanced in Smith, Teague bars it. In particular, we assume that, although Smith rejected as Teague-barred the theory that delay undermines the purposes of “retribution and deterrence,” Smith did not address the theory that" }, { "docid": "22571870", "title": "", "text": "earlier petition were it not for “inexcusable neglect.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). “[T]he abuse-of-the-writ doctrine ... concentrate^] on a petitioner’s acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time.” Id. at 490, 111 S.Ct. 1454. If the petitioner can show cause for his failure to raise the claim, he then must demonstrate “ ‘actual prejudice’ resulting from the errors of which he complains.” Id. at 494, 111 S.Ct. 1454(quoting United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Claims that suffering the ravages of death row for a lengthy duration violate the Eighth Amendment are commonly called Lackey claims, after Justice Stevens’ concurrence in the Supreme Court’s denial of certiorari in Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., respecting denial of certiorari). There, Justice Stevens pointed out that the Court’s determination in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that the Eighth Amendment did not prohibit capital punishment relied heavily on the ground that the. death penalty “might serve ‘two principal social purposes: retribution and deterrence.’ ” Lackey, 514 U.S. at 1045, 115 S.Ct. 1421(quoting Gregg, 428 U.S. at 183, 96 S.Ct. 2909). He questioned whether either of those policy grounds retained any force after an inmate had spent seventeen years on death row, noting that “the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted,” id., and that “the additional deterrent effect from an actual execution now ... seems minimal,” id. at 1046, 115 S.Ct. 1421. Since then, Justice Breyer has also questioned whether the additional punishment of death after confinement on death row for “more than a generation” was cruel and unusual punishment. Foster v. Florida, 537 U.S. 990, 993, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (Breyer, J., dissenting from denial of certiorari) (arguing that imposition of the death penalty might violate the Eighth Amendment where Florida courts twice vacated petitioner’s" }, { "docid": "18146277", "title": "", "text": "the court’s order, Petitioner filed an amended federal habeas petition. In amended claim 27, Petitioner alleged that California’s post-conviction system itself violates the Eighth Amendment by creating excessive delay between sentencing and execution in capital cases generally. After receiving briefs and holding a hearing, the district court granted relief to Petitioner on the amended claim, holding that California’s post-conviction system for capital prisoners violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Jones v. Chappell, 31 F.Supp.3d 1050 (C.D.Cal.2014) (order). Although more than 900 people have been sentenced to death in California since 1978, only 13 have been executed. Id. at 1053. As of 2014, some Death-Row inmates had died of natural causes, the sentences of some had been vacated, and 748 remained on Death Row. Id. For those who are eventually executed, “the process will likely take 25 years or more.” • Id. at 1054. “[D]elay is evident at each stage of the post-conviction review process,” id. at 1056, including on direct appeal, state collateral review, and federal collateral review, id. at 1056-60. In the district court’s view, “much of the delay in California’s post[-]conviction review process is created by the State itself.” Id. at 1066. Relying primarily on the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), the district court held that the “systemic delay and dysfunction” in California’s post-conviction review process was unconstitutionally “arbitrary,” because a capital prisoner’s selection for execution “will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.” Jones, 31 F.Supp.3d at 1061-63. The court concluded that, “where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State’s process violates the Eighth Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one" }, { "docid": "6827550", "title": "", "text": "a prisoner might assert following a decades-long tenure on death row. First, the prisoner might argue that confining a person on death row for such an extended period of time itself constitutes cruel and unusual punishment. The core of this claim is the assertion that having a death sentence hanging over one’s head subjects one to extraordinary psychological duress, as well as the extreme physical and social restrictions that inhere in life on death row, and that it constitutes cruel and unusual punishment to impose such conditions of stress upon a death row inmate for a period of decades. See Lackey, 514 U.S. at 1045-46, 115 S.Ct. at 1421-22. Second, the prisoner might argue that, after a sufficient amount of time has elapsed since the defendant’s conviction, the execution would violate the Eighth Amendment because the ability of the state to exact retribution and to deter other serious offenses by actually carrying out the defendant’s execution is drastically diminished. As discussed above, the core of this claim is that the penological justification for carrying out an execution disappears when a period of decades has elapsed between the conviction and the proposed execution date, and that actually executing the defendant under such circumstances is an inherently excessive punishment that no longer serves any legitimate purpose. See id.; Furman v. Georgia, 408 U.S. 238, 312, 92 S.Ct. 2726, 2763-64, 33 L.Ed.2d 346 (1972) (White, J., concurring). McKenzie addressed only the first of these two types of Lackey claims. McKenzie was a capital defendant who had been on death row in Montana for twenty years and had been sentenced and resentenced to death eight times during the course of his trial and post-conviction proceedings. In the petition that gave rise to our en banc decision, McKenzie claimed that “the state of Montana’s inordinate delay in carrying out his sentence con stitutes cruel and unusual punishment, a claim similar to that raised in Texas by [the petitioner in the Lackey ease].” McKenzie, 57 F.3d at 1463. We declined to grant a writ. Our reasons for doing so were twofold. We found, first, that a" }, { "docid": "13126805", "title": "", "text": "violate the Eighth Amendment’s prohibition against cruel and unusual punishment — essentially the same argument raised here by McKenzie. Id. Justice Stevens stated that “[tjhough novel, petitioner’s claim is not without foundation,” and “[pjetitioner’s claim, with its legal complexity and its potential for far-reaching consequences, seems an ideal example of one which would benefit from [ ] further study” by state and federal courts. Id. Justice Breyer noted his agreement with Justice Stevens that “the issue is an important undecided one.” Id. Though Justice Stevens did not, of course, rule on the merits of Lackey’s claim, he did postulate that neither of the two proffered purposes of the death penalty — retribution and deterrence — “retains any force for prisoners who have spent some 17 years under a sentence of death.” id.; see, e.g., In re Medley, 134 U.S. 160, 172, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890) (“[W]hen a prisoner sentenced by .a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it_”). Therefore, the execution of a prisoner who has spent such a protracted period of time on death row would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. Furman v. Georgia, 408 U.S. 238, 312, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346 (1972) (White, J., concurring in the judgment); see also Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976) (“[T]he sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering”). Justice Stevens added that “[tjhere may well be constitutional significance to the reasons for the various delays.” Lackey, — U.S. -, 115 S.Ct. 1421. In particular, he suggested distinguishing among delays resulting from (a) a petitioner’s abuse of the" }, { "docid": "13126816", "title": "", "text": "is “highly unlikely” to succeed. Order at 1467-68. First, the majority grossly misconstrues the Lackey claim because it defines the claim exclusively in terms of the “delay in the imposition of the death penalty.” Order at 1467 (emphasis added). The majority is simply wrong about this. Delay is only one component of the claim; the other essential component is ignored by the majority — the act of execution following the delay. This could not have been made clearer by Justice Stevens. He focuses on “the question whether executing a prisoner who has already spent some 17 years on death row violated the Eighth Amendment’s prohibition against cruel and unusual punishment.” Lackey v. Texas, — U.S. at -, 115 S.Ct. at 1421 (emphasis added). In suggesting an answer to that question, Justice Stevens goes through part of the Eighth Amendment analysis set forth in Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, JJ.), that requires a sanction to have “penological justification” in order to survive an Eighth Amendment challenge. Id. at 183, 96 S.Ct. at 2929. Justice Stevens then posits that neither of the two proffered justifications of the death penalty — retribution and deterrence — “retain[] any force for prisoners who have spent some 17 years under a sentence of death.” Lackey v. Texas, — U.S. at -, 115 S.Ct. at 1421. As a result of its misunderstanding of the nature of a Lackey claim, the majority ignores the relevant “penological justification” analysis as laid out by Justice Stevens. In fact, the majority evaluates the merits of McKenzie’s Eighth Amendment claim without engaging in any legal analysis whatsoever. Instead, the majority substitutes a policy lecture professing “fear” that sustaining McKenzie’s claim will “wreak havoc with the orderly administration of the death penalty in this country ... [and] dramatically alter the calculus in granting stays of execution in the hundreds of death penalty eases now pending”. Order at 1467. But what does this have to do with whether the Eighth Amendment’s ban on cruel and unusual punishment will be violated if" }, { "docid": "7668170", "title": "", "text": "death penalty system that the few executions it does carry out are arbitrary. Whereas few have been or will eventually be executed by California, the vast majority of individuals sentenced to death — each of whom, in the State’s view, committed crimes sufficiently reprehensible to warrant death — will effectively serve out terms of life imprisonment. See Appendix A. This reality of delay and dysfunction created by the State • simply cannot be reconciled with the asserted purpose of retribution. See Furman, 408 U.S. at 304-05, 92 S.Ct. 2726 (Brennan, J., concurring) (“The asserted public belief that murderers ... deserve to die is flatly inconsistent with the execution of a random few.”); id. at 311, 92 S.Ct. 2726 (White, J., concurring) (“[W]hen imposition of the [death] penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.”). C. Petitioners’ Fault in Creating Delay As the State correctly notes, courts have thus far generally not accepted the theory that extraordinary delay between sentencing and execution violates the Eighth Amendment. See, e.g., People v. Anderson, 25 Cal.4th 543, 606, 106 Cal.Rptr.2d 575, 22 P.3d 347 (2001) (“[Appellate delay in a capital case is not cruel and unusual punishment.”). When courts have rejected the theory, however, they have often not addressed whether any penological purpose of the death penalty continues to be served more than two decades after the death sentence was imposed. Rather, courts often rely on two justifications for rejecting the theory: first, that the delay is reasonably related to the state’s effort to safeguard the inmate’s constitutional rights by ensuring the accuracy of its death conviction and sentence, and second, that the delay is caused by the petitioner himself, and therefore cannot be constitutionally problematic. The facts here, however, show that at least as to California’s administration of its death penalty system, such assumptions are simply in-coirect. The Court pauses first to note the arguments that the State is not making in opposition to Mr. Jones’s claim. The State is not arguing that the delay in Mr. Jones’s" }, { "docid": "5344025", "title": "", "text": "Gillihan v. New Mexico, No. 74-414 (D.N.M., May 14, 1975), Record, vol. I, at 58-59. We accordingly conclude that appellant was not denied effective assistance of counsel on appeal from his state court conviction. III. Appellant’s Claim that his Conviction Was Rendered Void by the Imposition of the Death Penalty. Appellant argues that his conviction was rendered void by the imposition of the death penalty which constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Appellant’s reliance on Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in support of this contention is misplaced. Furman did not hold, as appellant seems to contend, that the infliction of the death penalty per se violates the eighth amendment. Rather, “Furman held that [the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 883 (1976). The Supreme Court’s holding left intact the convictions by merely reversing the judgment in each case before it insofar as it left undisturbed the death sentence imposed. 408 U.S. at 240, 92 S.Ct. at 2727, 33 L.Ed.2d at 350. Accord, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2992, 49 L.Ed.2d 944, 962 (1976); Roberts v. Louisiana, 428 U.S. 325, 336, 96 S.Ct. 3001, 3008, 49 L.Ed.2d 974, 983 (1976). Furthermore, four years after Furman the Supreme Court held that the imposition of the death penalty does not per se constitute cruel and unusual punishment. The Court stated: “We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.” Gregg v. Georgia, 428 U.S. 153,187, 96 S.Ct. 2909,2932, 49 L.Ed.2d 859, 883-84 (1976). Accord, Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929, 936 (1976); Proffitt" }, { "docid": "13126806", "title": "", "text": "to which he can be subjected during that time is the uncertainty during the whole of it_”). Therefore, the execution of a prisoner who has spent such a protracted period of time on death row would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. Furman v. Georgia, 408 U.S. 238, 312, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346 (1972) (White, J., concurring in the judgment); see also Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976) (“[T]he sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering”). Justice Stevens added that “[tjhere may well be constitutional significance to the reasons for the various delays.” Lackey, — U.S. -, 115 S.Ct. 1421. In particular, he suggested distinguishing among delays resulting from (a) a petitioner’s abuse of the judicial system by escape or repetitive, frivolous filings; (b) a petitioner’s legitimate exercise of his right to review; and (c) negligence or deliberate action by the State. Id. Justice Stevens’ and Justice Breyer’s views on the importance of this Eighth Amendment delay claim appear to have received the imprimatur of the Court when on April 27, 1995, it entered a stay of Lackey’s execution “pending the district court’s consideration of petitioner’s petition for a writ of habeas corpus.” Lackey v. Scott, — U.S. -, 115 S.Ct. 1818, 131 L.Ed.2d 741 (1995) (dismissal of writ of certiorari). See note 1, supra. The State does not contend that the delay in McKenzie’s ease is even remotely attributable to petitioner’s “repetitive, frivolous,” or otherwise illegitimate, filings, nor would such a contention be supported by the record. See Appendix (History of the McKenzie Case). The State does not challenge McKenzie’s contention that the Eighth Amendment may limit a state’s power to execute a prisoner who has lived under a sentence of death and under extreme conditions of confinement for" }, { "docid": "18146314", "title": "", "text": "law. Schriro v. Summerlin, 542 U.S. 348, 352 n. 4, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment. In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F.Supp.3d 1050, 1053, 1062-65 (C.D.Cal.2014); see Glossip v. Gross, - U.S. -, 135 S.Ct. 2726, 2767-70, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting). The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes. Kennedy v. Louisiana, 554 U.S. 407, 441, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California. A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come. Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). I would reverse the district court’s judgment on a different ground. A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court. 28 U.S.C. § 2254(b)(1)(A). Jones concedes he has not done that. He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance. Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., respecting denial" }, { "docid": "6827535", "title": "", "text": "in Martinez-Villareal sought to avoid. When Ceja first requested collateral review of his sentence in 1983, the factual predicate did not exist for the execution-related claim for which he now seeks relief. At that point, he had been on death row for eight and a half years, a long but hardly remarkable tenure and certainly not enough to raise a colorable Lackey claim. Thus, the Martinez-Villareal filing requirement does not apply to Ceja’s claim. II. In finding that the Eighth Amendment does not categorically prohibit the state from imposing the ultimate sanction upon our most serious offenders, the Supreme Court has repeatedly articulated an important qual ification: the imposition of the death penalty (rather than life imprisonment) upon a serious offender must serve some legitimate pe-nological end that could not otherwise be accomplished. If “the punishment serves no penal purpose more effectively than a less severe punishment,” Furman v. Georgia, 408 U.S. 238, 280, 92 S.Ct. 2726, 2747, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring), then it is unnecessarily excessive within the meaning of the Punishments Clause. The Court has defined the penological justifications that can support a legitimate application of the death penalty. Those justifications are twofold: “retribution and deterrence of capital crimes by prospective offenders.” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929-30, 49 L.Ed.2d 859 (1976) (plurality opinion). When a proposed execution “ceases realistically to further these purposes ..., its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes ... [and] would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U.S. at 312-13, 92 S.Ct. at 2764 (White, J., concurring). In no uncertain terms, the Court has said that when the State proposes to kill a human being as a form of punishment for a criminal act, “the sanction cannot be so totally without penological justification that it results in the gratuitous infliction of suffering.” Gregg, 428 U.S. at 183, 96 S.Ct. at 2929. Ceja claims that the ability of the state to further" }, { "docid": "6827536", "title": "", "text": "Punishments Clause. The Court has defined the penological justifications that can support a legitimate application of the death penalty. Those justifications are twofold: “retribution and deterrence of capital crimes by prospective offenders.” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929-30, 49 L.Ed.2d 859 (1976) (plurality opinion). When a proposed execution “ceases realistically to further these purposes ..., its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes ... [and] would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U.S. at 312-13, 92 S.Ct. at 2764 (White, J., concurring). In no uncertain terms, the Court has said that when the State proposes to kill a human being as a form of punishment for a criminal act, “the sanction cannot be so totally without penological justification that it results in the gratuitous infliction of suffering.” Gregg, 428 U.S. at 183, 96 S.Ct. at 2929. Ceja claims that the ability of the state to further the ends of retribution and deterrence has been drastically diminished as a result of the extraordinary period of time that has elapsed since the date of his conviction. Justices Stevens and Breyer have confirmed that his claim has merit, writing, “It is arguable that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death.” Lackey, 514 U.S. at 1045, 115 S.Ct. at 1421 (emphasis added). Certainly, Ceja has raised a color-able claim for commutation. We should grant a stay in order to give his claim the consideration it deserves. A. In saying that “retribution” can serve as a legitimate basis'for imposing the death penalty, the Supreme Court has recognized an important distinction between the two concepts that the term might be held to embrace: the expression of moral outrage by a community; and the exaction of blood vengeance. I believe that the Court’s treatment of the subject of retribution definitively demonstrates that the exaction of blood vengeance is not a legitimate basis for the imposition of the" } ]

[ { "docid": "12124167", "title": "", "text": "— even if medical corpsmen — to serve as “observers” of women who have been required to give urine specimens. B In a prosecution for disobedience, lawfulness of the command is an element of the offense.. See Arts. 90(2), 91(2), and 92(1) and (2), UCMJ, 10 USC §§ 890(2), 891(2), and 892(1) and (2), respectively. An order is presumed to be lawful, see United States v. Austin, 27 MJ 227, 231-32 (CMA 1988); but the presumption may be rebutted. Thus, an order requiring the recipient to provide a urine specimen is illegal — and therefore unenforceable — if the order provided for collection of urine under humiliating and degrading conditions, as proscribed by Murray v. Haldeman, supra, and authorities relied on therein. If, in a trial for disobedience, the military judge determines from undisputed facts that the order was illegal, he should dismiss the charge. If, in a trial by members, the military judge determines that no evidence has been offered to rebut the presumed legality of the order to provide a urine specimen, he need not advise the members as to what facts might rebut the presumption. If, however, he concludes from all the evidence that an issue exists as to whether the servieemember had been ordered to provide the specimen under unreasonable conditions, he should submit the issue to the court members for their consideration. In that event, his instruction would be that, unless the members have been convinced beyond a reasonable doubt that the requirements for producing the urine specimen — including the manner in which the direct observation was to be performed — were reasonable and not unduly humiliating or degrading, the order was illegal and the accused should be acquitted. Of course, in a trial by military judge alone, he must determine beyond a reasonable doubt that the order contemplated “seizure” of the urine specimen under reasonable conditions. In this case, the military judge apparently did not conclude from the evidence before him that the order was illegal. Therefore, he did not dismiss the charges; and on the record before us, we agree with this" } ]

[ { "docid": "12136940", "title": "", "text": "M.J. 326, 331 n. 4 (C.M.A.1987). See also Palmiter, 20 M.J. at 99-100 (Everett, C.J., concurring). The parties have spent much effort arguing the legality of Colonel Rust’s and Major Biankini’s “no contact” orders. It should be clear from the Palmiter rule that the abstract legality of these orders is not a threshold issue. If orders or other actions independently violate law or regulation, that may be a reason to infer a punitive intent or reject an asserted nonpunitive objective. See United States v. Villamil-Perez, 32 M.J. 341, 343 (C.M.A.1991) (posting of incident report on bulletin board violated Army regulation). However, an otherwise lawful action still violates Article 13, if it is intended as punishment or does not reasonably relate to a legitimate nonpunitive governmental objective. Issues of pretrial punishment are not waived, either expressly before trial or by failure to raise them at trial. See Cruz, 25 M.J. at 330-331 (failure to raise); Palmiter, 20 M.J. at 96 (express pretrial “waiver”). However, a servicemember’s failure to complain of conditions before trial is “strong evidence” that the member has not been illegally punished. Palmiter, 20 M.J. at 97. See also United States v. Huffman, 40 M.J. 225, 227 (C.M.A.1994); United States v. James, 28 M.J. 214, 216 n. 4 (C.M.A.1989). Neither the Court of Appeals for the Armed Forces nor this Court has formally stated the standard of review for trial rulings on Article 13 issues. The government suggests our standard of review should be de novo. We agree. In our view, the nonwaivable nature of Article 13 violations is more consistent with a de novo review than with an abuse of discretion standard. But see United States v. Phillips, 38 M.J. 641, 642 (A.C.M.R.1993) (abuse of discretion standard applied to Article 13 ruling). As with other types of trial rulings, we will defer to the findings of fact by the military judge unless they are clearly erroneous. United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985). However, as with unlawful command influence issues, whether unlawful pretrial punishment flows from those facts is a question of law for this Court." }, { "docid": "411255", "title": "", "text": "Evid. 606(b). 60 M.J. 122 (C.A.A.F.2004)(order granting review). . 10 U.S.C. §§ 885, 886 (2002). . See R.C.M. 1105, 1107 (convening authority must consider clemency matters submitted by accused before taking final action on sentence). . The military judge’s statements made during the \"Bridging the Gap\" session were first asserted by Appellant in his clemency submission to the convening authority. Appellate Government counsel did not deny that the statements were made when the case was before the Army Court of Criminal Appeals, a fact specifically noted by that court. See McNutt, 59 M.J. at 631. And now before our Court, the unrebutted statements continue to be unchallenged by appellate Government counsel. . 34 M.J. 926 (A.F.C.M.R.1992). . M.R.E. 606(b) prohibits a court member from testifying as to any matter or statement made during deliberations or to the effect of anything upon the member's mind, emotions, or mental processes in deciding the findings or sentence, with three exceptions. \"[A] member may testify on the question whether extraneous prejudicial information was improperly brought to the attention of the members ..., whether any outside influence was improperly brought to bear upon any member, or whether there was unlawful command influence.\" . McNutt, 59 M.J. at 632. . Id. . Id. at 633. . United. States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988) (quoting United States v. Quesinberry, 12 C.M.A. 609, 612, 31 C.M.R. 195, 198 (1962)). . Id. (stating that the impact of a punitive discharge on retirement benefits is a collateral consequence that should not influence the members' decision on the accused’s sentence). See also United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180 (1959) (stating that the sentences in other cases cannot be given to court-martial members for comparative purposes). . Quesinberry, 12 C.M.A. at 612, 31 C.M.R. at 198 (holding that members should not be informed of the specific consequences of a bad-conduct discharge). . Id. . United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F.2000). . See, e.g., United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F.2001) (stating that military judges should \"instruct on the" }, { "docid": "21598149", "title": "", "text": "offense.” UCMJ art. 59(b). In order to affirm a lesser included offense in lieu of affirming the offense of which the appellant stands convicted — other than one under the “crimes and offenses not capital” clause of Article 134 — we should first deter mine whether there was a specific understanding at trial as to lesser included offenses. This could be the result of (1) an agreement between the counsel and military judge, (2) instructions by the military judge to the panel, or (3) an announcement by the military judge, in a judge alone trial, prior to deliberations on findings. United States v. McGhee, 32 M.J. 322, 325 (C.M.A.1991) (counsel agreed negligent homicide was the only lesser included offense of involuntary manslaughter); United States v. McKinley, 27 M.J. 78, 80 (C.M.A.1988) (judge ruled and counsel agreed no lesser included offenses of obstructing justice); United States v. Morgan, 8 U.S.C.M.A. 659, 25 C.M.R. 163, 166-67, 1958 WL 3105 (1958) (conviction of lesser included offense not instructed upon cannot stand). If present, this determination becomes the “law of the case” unless there is “plain ¿rror.” McKinley, 27 M.J. at 80. If there is no “law of the case” to control lesser included offense findings, we should then look to the Manual for Courts-Martial to see which offenses are specifically determined therein to be lesser included offenses for the charged specification. McGhee, 32 M.J. at 325 (Manual lists negligent homicide as lesser included offense of involuntary manslaughter); McKinley, 27 M.J. at 80 (Manual states no lesser included offense of obstructing justice). When, under either of these two scenarios, we have a lesser included offense to the offense of which the appellant was convicted at trial, we may (subject to a determination of sufficiency) affirm that lesser included offense. United States v. Patterson, 14 U.S.C.M.A. 441, 34 C.M.R. 221, 224 (1964) (“Appellate affirmance of a lesser offense included within the offense found is supported by substantive law, established rules of procedure, and reason”). In most instances, (for example, voluntary manslaughter (Article 119) as a lesser included offense to murder (Article 118)) it is a" }, { "docid": "7279945", "title": "", "text": "in public. “The gravamen of the offense is not the locus as such, but the discrediting circumstance.” Id. at 232; see also United States v. Davis, 26 M.J. 445 (C.M.A.1988). In an analogous situation, the court has similarly reasoned that disgraceful or dishonorable conduct in violation of Article 133, UCMJ, 10 U.S.C. § 933, does not depend on where the offense was committed but whether, if known, its commission would tend to lessen the public reputation and esteem of the officer offender and the officer corps. United States v. Guaglione, 27 M.J. 268 (C.M.A.1988); United States v. Norvell, 26 M.J. 477 (C.M.A.1988); United States v. Dallman, 32 M.J. 624 (A.C.M.R.), pet. granted, 34 M.J. 15 (C.M.A.1991). “Some acts by their very nature are prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. They generally are offenses that involve a degree of moral turpitude.” United States v. Light, 36 C.M.R. 579, 584 (A.B.R.1965). False swearing is such an offense. It is not necessary that an accused explain how an offense is prejudicial to good order and discipline or is service discrediting. United States v. Arrington, 5 M.J. 756 (A.C.M.R.), pet. denied, 6 M.J. 46 (C.M.A.1978). However, it is necessary that he or she admit that the conduct alleged is prejudicial to good order and discipline or service discrediting. United States v. Stener, 14 M.J. 972, 974 (A.C.M.R.1982). In the instant case, the military judge’s inquiry accomplished precisely that and was therefore adequate to establish that appellant’s false swearing to a criminal investigator on a military installation was discrediting to the armed forces. We have considered the appellant’s other assigned error and find it to be without merit. The findings of guilty and the sentence are affirmed. Senior Judge JOHNSON and Judge GRAVELLE concur." }, { "docid": "14256898", "title": "", "text": "(N.C.M.R.1979), Judge Michel stated that: It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976)., A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Cf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975). In the case at hand, the military judge opined that the defense had had ample time to collect extenuation and mitigation evidence. Defense counsel indicated that nearly two months had gone by between the time the initial letters were sent out to prospective witnesses and the date of the motion; appellant was waiting not for answers to the initial letters but to follow-up correspondence in the absence of response to the first set. The military judge calculated that the defense had had available over 90 days worth of man-hours in which to obtain this evidence and was obviously of the opinion that, given the length of time appellant already had spent in pretrial confinement, there was no practical purpose which would be served by further delay. The time given appellant to review the background material on the prospective members appears sufficient. In our review of the matters before the military judge, in application of Furgason, we do not see any abuse of discretion and, thus, find no merit in this assignment of error. IX THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF" }, { "docid": "1912262", "title": "", "text": "applies the correct law.). When GySgt RR made his comments, he was clearly speaking under the influence of the moment. As the father of a young girl who had been sexually victimized by Appellant, GySgt RR’s remarks were indicative of his outrage. While his statements may have crossed the boundary of proper opinion testimony, we presume the military judge assessed and gave appropriate weight to that testimony. See Williams, 50 M.J. at 400 (where the Court presumed the military judge was aware of the limits on proper sentencing testimony). Unlike the squadron commander’s testimony in United States v. Ohrt, 28 M.J. 301 (C.M.A.1989), a case on which Appellant heavily relied in his brief, GySgt RR’s testimony did not inject a quality of command influence into the proceedings. Rather, his statements simply reflected the personal feelings of a distraught father dealing with the pain caused by Appellant’s criminal conduct. In any event, given the serious nature of Appellant’s conduct, there is virtually no chance GySgt RR’s testimony with regard to an appropriate sentence altered the outcome of the proceedings. In fact, Appellant received a sentence well below the maximum sentence of 23 and one-half years confinement. Charge Sheet; Record at 27, 169. Under the circumstances, the testimony simply did not rise to the level of plain error. See United States v. Wilson, 31 M.J. 91, 94 (C.M.A.1990)(using a euphemism to recommend a punitive discharge was found not to be plain error). Accordingly, we decline to grant relief. Sentence Appropriateness In Appellant’s sixth assignment of error, he asserts that his sentence to a dismissal and 7 years confinement is inappropriately severe. Appellant avers that this Court should reassess the sentence to include confinement for only 4 years. We disagree. A court-martial may impose any sentence, including the maximum sentence authorized by law. R.C.M. 1002. An appropriate sentence results from an individualized consideration of the nature and seriousness of the offense and the character of the offender. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982)(citing United States v. Mamaluy, 10 C.M.A. 102, 27 C.M.R. 176, 1959 WL 3587 (1959)). Courts of criminal" }, { "docid": "1093757", "title": "", "text": "States v. Larneard, 3 M.J. 76 (C.M.A.1977); United States v. Palenius, 2 M.J. 86 (C.M.A.1977); ABA Standards, The Defense Function § 8.2 (1971). Accordingly, lack of access to the record prior to rebutting the second review necessitates a new review and action. C. Issue II The chief prosecution witness, whose testimony was sine qua non to the success of this prosecution, was specifically requested by the defense counsel on the day preceding the Article 32 investigation. This witness, Monhollen, a service person, had been taken to another military installation and his commander denied a request for his attendance, determining him unavailable ostensibly because of exigent job responsibilities, the “possibility” that unascribed threats against him would be carried out, and the five flying hours that lay between him and the situs of the Article 32 investigation. It was this third factor which the commander considered determinative in his denial of Monhollen’s appearance. Following this denial, toward the end of the investigation, the defense counsel requested a continuance to secure Monhollen’s attendance. The investigating officer denied this request and, in lieu of Monhollen’s presence, considered his sworn written statement. We have in various cases addressed the meaning of the Article 32(b) provision for cross-examination of witnesses “if they are available.” The Code and Manual have not provided compulsory process for appearance at an Article 32 hearing; however, it has been made clear that a service person under military control may be ordered to appear under military orders. United States v. Ledbetter, 2 M.J. 37 (C.M.A.1976). Absent proper objection to a substantial pretrial right; the merger of that right into those at trial; and with no indication that the proceedings have in some way adversely affected appellant’s trial right, this Court is on record that appellant’s conviction should not be set aside. United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958). We have addressed related aspects of this issue. In United States v. Donaldson, 23 U.S.C.M.A. 293, 49 C.M.R. 542 (1975), the Article 32 investigation was improperly convened. That timely objection was made to this defect required reversal. So, too, the" }, { "docid": "1877874", "title": "", "text": "for nineteen months, and forfeiture of all pay and allowances. All rights, privileges, and property, including pay and allowances forfeited pursuant to Article 58b, Uniform Code of Military Justice, of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision, are hereby ordered restored. See Uniform Code of Military Justice, Article 75(a). Senior Judge CHAPMAN and Judge STOCKEL concur. . United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967). DuBay is a two-page per curiam opinion where the parties both agreed that a serious issue had been raised as to whether the convening authority, in a series of cases, had violated the prohibition against unlawful command influence established by Article 37, UCMJ, 10 U.S.C. § 837. . Some of these facts come from our decisions and the corresponding records of trial in other cases where we previously granted relief based upon affidavits submitted by the appellants in those cases for nearly identical allegations of misconduct as that asserted by appellant Fagan, and allegedly committed by the same USACFE prison guard, Sergeant (SGT) D. See cases cited at Kinsch, 54 M.J. at 643 n. 3. In most of these cases, the government conceded that relief was appropriate, apparently in part because under Ginn they could not submit affidavits contesting the allegations without forcing a DuBay hearing. Our authority to take judicial notice of relevant portions of other pertinent records of trial is well established. See, e.g., United States v. Durant, 55 M.J. 258, 262 (2001); United States v. McElroy, 40 M.J. 368, 369 n. 1 (C.M.A.1994); United States v. Budd, 15 M.J. 465 (C.M.A.1983) (interlocutory order), rev’d in part on other grounds, 17 M.J. 431 (C.M.A.1984) (summary disposition); United States v. Clossen, 14 M.J. 126 (C.M.A. 1982) (interlocutory order); United States v. Austin, 20 C.M.R. 939, 941, 1955 WL 3667 (A.F.B.R. 1955). While such cases most often involve sentence appropriateness or disparity issues, the unusual posture of appellant’s case merits similar treatment. . Judges Sullivan, Cox, and Effron concurred in the majority opinion in Ginn. Judge Gierke wrote" }, { "docid": "14256897", "title": "", "text": "NOVEMBER 30th OR THE SOONEST DATE THEREAFTER. On 22 November 1977, during the Article 39(a) session, trial defense counsel made a motion for a continuance until 30 November, or the soonest date thereafter. Two reasons were offered for the request: (1) the defense did not want to argue their motion concerning court member selection until the Government provided the names of the individuals appointed and (2) the defense had not had sufficient time to mar-shall responses from potential extenuation and mitigation witnesses. The military judge ordered the Government to provide the defense access to information concerning the selection and commands of the prospective court members, and granted a one-day continuance for this purpose. Appellant now argues that he had insufficient time to investigate the method of selecting the prospective court-members and had no time to get responses on the extenuation and mitigation letters sent by his counsel to some 30 people. In our recent discussion of military judges and their discretion to give or refuse a continuance, United States v. Furgason, 6 M.J. 844, 847 (N.C.M.R.1979), Judge Michel stated that: It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976)., A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Cf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975). In the case at hand, the military judge" }, { "docid": "12059057", "title": "", "text": "FC2 Lincoln was also still unsure about submitting a statement or taking a polygraph; that that communication to Special Agent Caeciaroni was understood by her not to be in compliance with the consultation portion of Article 31(b), consultation of a lawyer, that she knew that that communication didn’t comply with his right to consult with a lawyer; and, that Appellate Exhibit XIII, her ease memorandum of 15 September 1993, was in the record provided to Special Agent Dortch prior to the conducting of the polygraph examination, so that the fact of noncompliance with Article 31(b) of the UCMJ was clearly available to Special Agent Dortch; 8. That on 16 September 1993, FC2 Lincoln’s Article 31 (b) rights were violated in that the NCIS Agent Caeciaroni was on clear notice that Lincoln did not want to deal with NCIS until [he] had consulted with an attorney; that NCIS Agent Cacciaroni knew or should have known that Lincoln’s right to counsel had not been afforded, therefore all contact and further interviews should have ceased [adopted by the military judge as a conclusion of law]; and, that the government has not met its burden of proving by a preponderance of the evidence that the statement was obtained in a manner which complied with Article 31(b), citing United States v. Martinez, 38 M.J. 82 (C.M.A.1993); and, 9. That any further questioning of FC2 Lincoln, subsequent to his notice to Special Agent Caeciaroni, that he chose to exercise his rights under Article 31(b), were in fact involuntary and are inadmissible under Mil.R.Evid. 305 [also denominated as a conclusion of law by the military judge]. Record at 94-95; Appellate Exhibit XVIII (emphasis added). Analysis It is a legal axiom that involuntary pretrial confessions are inadmissible in trials by court-martial. The axiom is founded on the Constitution, statute, and executive order. See generally United States v. Lonetree, 35 M.J. 396 (C.M.A.1992), cert. denied, — U.S. -, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993); United States v. O’Such, 16 C.M.A. 537, 37 C.M.R. 157 (1967); United States v. Monge, 1 C.M.A. 95, 2 C.M.R. 1 (1952); UCMJ art." }, { "docid": "7279944", "title": "", "text": "because the military judge failed to elicit a sufficient factual basis for the plea. Specifically, the appellant alleges that the trial judge failed to ascertain on the record how his conduct, occurring as it did on a military installation, violated the service-discrediting clause of Article 134, UCMJ. See United States v. Caballero, 49 C.M.R. 594 (C.M.A.1975). We disagree with the appellant’s argument and hold that his pleas were provident. There is legal authority in support of the appellant’s assertion that, before the element of discrediting conduct under Article 134, UCMJ is proved, the record must establish that the conduct either be committed in or be known to the civilian community. See United States v. Ratajczak, 43 C.M.R. 1007, 1012 (A.F.C.M.R.), pet denied, 43 C.M.R. 413 (C.M.A.1971) (citing cases holding that discrediting conduct normally must be public in nature). Conversely, the government’s opposing position finds support in United States v. Lowe, 16 C.M.R. 228 (C.M.A.1954), wherein the Court of Military Appeals held that drunkenness may be discrediting to the armed forces whether or not it occurs in public. “The gravamen of the offense is not the locus as such, but the discrediting circumstance.” Id. at 232; see also United States v. Davis, 26 M.J. 445 (C.M.A.1988). In an analogous situation, the court has similarly reasoned that disgraceful or dishonorable conduct in violation of Article 133, UCMJ, 10 U.S.C. § 933, does not depend on where the offense was committed but whether, if known, its commission would tend to lessen the public reputation and esteem of the officer offender and the officer corps. United States v. Guaglione, 27 M.J. 268 (C.M.A.1988); United States v. Norvell, 26 M.J. 477 (C.M.A.1988); United States v. Dallman, 32 M.J. 624 (A.C.M.R.), pet. granted, 34 M.J. 15 (C.M.A.1991). “Some acts by their very nature are prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. They generally are offenses that involve a degree of moral turpitude.” United States v. Light, 36 C.M.R. 579, 584 (A.B.R.1965). False swearing is such an offense. It is not necessary that an accused explain how" }, { "docid": "12136917", "title": "", "text": "States v. Johnston, 39 M.J. 242, 244 (C.M.A.1994). “[T]here must be something more than an appearance of evil to justify action by an appellate court in a particular case. ‘Proof of [command influence] in the air, so to speak, will not do.’” United States v. Allen, 33 M.J. 209, 212 (1991), cert. denied, 503 U.S. 936,112 S.Ct. 1473, 117 L.Ed.2d 617 (1992). To carry this burden of production, ... an appellant must (1) “allege [ ] sufficient facts which, if true, constitute unlawful command influence”; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the proximate cause of that unfairness____ The same three-pronged analysis would apply to an allegation of unlawful interference with access to witnesses. Stombaugh, 40 M.J. at 213 (quoting United States v. Levite, 25 M.J. 334, 341 (C.M.A.1987) (Cox, J., concurring)). Once an appellant satisfies his burden of production, the burden of proof is on the government to disprove the allegation. Stombaugh, 40 M.J. at 213-214. We must then be “persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the command influence.” Thomas, 22 M.J. at 394; accord Stombaugh, 40 M.J. at 214. If a command influence issue has been addressed at trial, we will defer to the military judge’s findings of fact, unless they are clearly erroneous. See United States v. Wallace, 39 M.J. 284, 286 (C.M.A.1994). However, whether “unlawful command influence” flows from those facts is a question of law, which we review de novo. Id. C. Decision The appellant has carried his burden of production as to the first prong of the Levite-Stombaugh test. He introduced the orders from Colonel Rust and Major Biankini, and testified the orders prevented him from personally contacting potential witnesses. He also produced testimony from two Contracting NCOs to the effect that the atmosphere in the office was poisoned against the appellant, and they feared adverse career consequences if they helped him. Finally, the Shaw defense paralegal’s clash with the first sergeant over appointment procedures might be argued as command interference with access to witnesses. In" }, { "docid": "12136941", "title": "", "text": "that the member has not been illegally punished. Palmiter, 20 M.J. at 97. See also United States v. Huffman, 40 M.J. 225, 227 (C.M.A.1994); United States v. James, 28 M.J. 214, 216 n. 4 (C.M.A.1989). Neither the Court of Appeals for the Armed Forces nor this Court has formally stated the standard of review for trial rulings on Article 13 issues. The government suggests our standard of review should be de novo. We agree. In our view, the nonwaivable nature of Article 13 violations is more consistent with a de novo review than with an abuse of discretion standard. But see United States v. Phillips, 38 M.J. 641, 642 (A.C.M.R.1993) (abuse of discretion standard applied to Article 13 ruling). As with other types of trial rulings, we will defer to the findings of fact by the military judge unless they are clearly erroneous. United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985). However, as with unlawful command influence issues, whether unlawful pretrial punishment flows from those facts is a question of law for this Court. C. Decision We can dispose of Colonel Rust’s U.A.E. “no contact” order quickly. There is no evidence of any punitive intent. The intended purposes of the order—to avoid compromise of an ongoing investigation and a potential international incident in the aftermath of the Gulf War—were obviously legitimate nonpunitive governmental objectives. Colonel Rust’s order reasonably related to those objectives. Therefore, we find the appellant was not subjected to unlawful pretrial punishment while in the U.A.E. or Saudi Arabia. Major BianMni’s “no contact” order and the reassignment to CC & T-Flight at Shaw are another matter. There is no satisfactory explanation in the record for the order extending beyond official contact to social activity. There are no specific examples of “disruptive” acts by the appellant, or an explanation why they required his reassignment instead of appropriate discipline. The prosecution presented no evidence explaining how CC & T-Flight was selected as the appellant’s new duty section, instead of another place not generally identified with punishment or where the appellant could exercise responsibilities more in line with his grade." }, { "docid": "12105046", "title": "", "text": "to represent appellant at trial, he requested that LT S be made available to act as his individual military counsel. It is uncontroverted that LT S would be unavailable until 24 October 1977; trial defense counsel thrice moved for a continuance until that date and each time his motion was denied. These denials form the crux of appellant’s present contention that, in so acting, the military judge abused his discretion. It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976). A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Cf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975). Appellant’s final motion for a continuance was denied on 28 September 1977, three months to the day after the original Charge was preferred against him. As of the date of this denial, appellant had been actively seeking the assistance of individual military counsel for approximately six weeks; from the record before us it appears that he first requested an individual military counsel within three days of the date that he was served with the first charge sheet. Certainly under these circumstances it cannot be said that appellant’s request came at the eleventh hour and thus stemmed solely from a motive to delay trial. In essence, appellant’s final request was for a twenty-six day delay. While we recognize that" }, { "docid": "1078310", "title": "", "text": "Master Sergeant (MSgt) Geeting, MSgt Elzey, and four others were discouraged from providing evidence on his behalf and that his trial defense counsel was also the object of command influence. In response, appellate government counsel submitted, and the Air Force Court accepted, an affidavit from Captain (Capt) Martin who was appellant’s trial defense counsel. Capt Martin denied that a sub rosa agreement existed; denied that he was “unduly influenced” by conversations with appellant’s commander; asserted that he told appellant “to prepare a list of potential character witnesses”; and asserted that he interviewed two persons who appellant and his mother identified as being improperly influenced by the command. Capt Martin did not name the two persons whom he interviewed, but he asserted that they made no undue-influence claims to him. In response thereto appellant submitted, and the Air Force Court accepted, affidavits from two persons which he asserts contradict the assertions and denials of trial defense counsel. The affidavits from MSgt Geeting and MSgt Elzey stated that they were never contacted by defense counsel “before, during, or after” appellant’s court-martial concerning “alleged command influence” or their respective opinions of appellant. The Court of Military Review found that appellant’s contention of unlawful command influence had “no merit.” Furthermore, it made extensive findings of fact and conclusions of law after reviewing all the affidavits, appellate briefs, issues submitted by appellate defense counsel pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982), and the record of trial. It relied on its conclusory decision in United States v. Daffron, 32 MJ 912, 915, pet. denied, 34 MJ 75 (CMA 1991), as authority for its factfinding. Appellant argues before this Court that “the Air Force Court of Military Review improperly exercised its fact-finding powers” because it “eleet[ed] to adopt the facts contained in one ex parte affidavit over directly conflicting claims found in the appellant’s affidavits and evidence.” Final Brief at 3-4. Appellant contends that the court below was required to order a hearing pursuant to military case law and the Confrontation Clause of the Sixth Amendment. Article 66(c), UCMJ, 10 USC § 866(c)," }, { "docid": "15191875", "title": "", "text": "sentence are correct in law and fact and that no error materially prejudicial to the appellant’s sub stantial rights was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). Improper Calculation of Maximum Sentence In his first assignment of error, the appellant claims that the military judge erred in not applying the “ultimate offense” doctrine in calculating the maximum sentence for many of the appellant’s separate violations of Article 92, UCMJ. The appellant’s argument, based upon language contained in the Manual for Courts-Martial, United States (1998 ed.), Part IV, H 16(e)(2) [Note], asserts that, in the absence of the general order violated (prohibiting sexual harassment), he would on these same facts be subject to conviction for the ultimate offenses (i.e., indecent exposure and indecent language in violation of Article 134, UCMJ), which prescribe lesser maximum punishments of six months confinement each. The appellant is incorrect. ■ [1,2] The sentencing rule noted above, frequently referred to as the “ultimate offense doctrine,” was intended “to limit the punishment for certain orders violations where ‘the gravamen of the offense charged warranted a lesser punishment under another codal article.” United States v. Ame, 37 M.J. 170, 172 (C.M.A.1993)(quoting United States v. Quarles, 1 M.J. 231, 233 (C.M.A. 1975)). An accused may benefit from this rule only in those situations in which his misconduct: (1) involves the failure to obey a lawful order and also constitutes another offense specifically enumerated in the MCM, and (2) the “other offense” is deemed to constitute the gravamen of the misconduct committed. Arne, 37 M.J. at 172-73 (quoting United States v. Loos, 4 C.M.A. 478, 480, 16 C.M.R. 52, 54, 1954 WL 2427 (1954)); see United States v. Traxler, 39 M.J. 476, 478-79 (C.M.A.1994). In this case, sexual harassment, which is “behavior that is unwelcome, sexual in nature, and connected in some way with a person’s job or work environment,” is what this lawful general order specifically seeks to prohibit. Secretary of the Navy Instruction 5300.26C, Enclosure (2), at 112 (27 Oct. 1997). Three criteria must be met for conduct to constitute “sexual harassment” under this" }, { "docid": "13312672", "title": "", "text": "of this case, we find that a reasonable person would have considered appellant a suspect, requiring a rights’ warning advisement. See United States v. Mwirhead, 51 MJ 94 (1999)(military judge erred when he relied upon the subjective opinions of the agents as to whether Article 31(b) warnings were required where facts supported finding that reasonable person would have suspected accused of an offense.) C. Questioning By A Military Superior: Application of the Disciplinary Presumption Under our case law, we also consider whether MSgt Vernoski was acting in a law enforcement or disciplinary capacity in light of the “strong presumption” that questioning by a military superior in the “chain of command” is part of a “disciplinary” investigation. Good, supra at 108. As discussed in Part IIB, supra, although MSgt Vemoski had appropriate administrative concerns about appellant’s marital status, the circumstances of this case led to significant disciplinary considerations in the conduct of the investigation. From the initial telephone call from the first Mrs. Swift to the first confrontation with appellant, the nature of the actions taken by MSgt Vernoski and Capt Myatt underscore the priority they placed on military justice implications — including their joint visit to the personnel office and the base legal office, their consultation with the chief of military justice concerning a “potential bigamy ease,” MSgt Vernoski’s study of the bigamy provisions in the Manual for Courts-Martial, and MSgt Vernoski’s ordering of appellant to report to his office to respond to the “accusations” made by the first Mrs. Swift. Based on the foregoing considerations, in the context of the information provided by the first Mrs. Swift and the information developed through their own inquiries, we conclude as a matter of law that the Government failed to rebut the strong presumption that MSgt Vernoski’s interrogation was part of an investigation that included disciplinary purposes. Under the circumstances, he should have provided appellant with the statutorily required rights’ warnings, including the warning that he did not have to “make any statement regarding the offense” of which he was suspected. Art. 31(b). Accordingly, we hold that the military judge erred when" }, { "docid": "12136918", "title": "", "text": "that the findings and sentence have not been affected by the command influence.” Thomas, 22 M.J. at 394; accord Stombaugh, 40 M.J. at 214. If a command influence issue has been addressed at trial, we will defer to the military judge’s findings of fact, unless they are clearly erroneous. See United States v. Wallace, 39 M.J. 284, 286 (C.M.A.1994). However, whether “unlawful command influence” flows from those facts is a question of law, which we review de novo. Id. C. Decision The appellant has carried his burden of production as to the first prong of the Levite-Stombaugh test. He introduced the orders from Colonel Rust and Major Biankini, and testified the orders prevented him from personally contacting potential witnesses. He also produced testimony from two Contracting NCOs to the effect that the atmosphere in the office was poisoned against the appellant, and they feared adverse career consequences if they helped him. Finally, the Shaw defense paralegal’s clash with the first sergeant over appointment procedures might be argued as command interference with access to witnesses. In denying the appellant’s motion to dismiss, the military judge found “no evidence of command influence, either actual or perceived.” We do not agree with this conclusion. Viewed in the light most favorable to the appellant, the evidence is sufficient to cross the low threshold for satisfying the first prong of the Levite-Stombaugh production test—if the appellant’s factual allegations were true, they would constitute unlawful command influence. However, the appellant has failed to carry his burden of producing evidence as to the second Levite-Stombaugh prong, that is, to show that the proceedings were unfair. The record shows quite the contrary. Clearly, neither Colonel Rust’s actions nor his “no contact” order had any effect at all on the appellant’s access to witnesses. The evidence shows the appellant was whisked away from the U.A.E. to Riyadh, Saudi Arabia, soon after his AFOSI interrogation had been completed. After several days stay in Riyadh, the appellant returned to Shaw. Appellant offered no evidence about what he could have or would have accomplished in the U.A.E. had Colonel Rust not issued" }, { "docid": "12059058", "title": "", "text": "military judge as a conclusion of law]; and, that the government has not met its burden of proving by a preponderance of the evidence that the statement was obtained in a manner which complied with Article 31(b), citing United States v. Martinez, 38 M.J. 82 (C.M.A.1993); and, 9. That any further questioning of FC2 Lincoln, subsequent to his notice to Special Agent Caeciaroni, that he chose to exercise his rights under Article 31(b), were in fact involuntary and are inadmissible under Mil.R.Evid. 305 [also denominated as a conclusion of law by the military judge]. Record at 94-95; Appellate Exhibit XVIII (emphasis added). Analysis It is a legal axiom that involuntary pretrial confessions are inadmissible in trials by court-martial. The axiom is founded on the Constitution, statute, and executive order. See generally United States v. Lonetree, 35 M.J. 396 (C.M.A.1992), cert. denied, — U.S. -, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993); United States v. O’Such, 16 C.M.A. 537, 37 C.M.R. 157 (1967); United States v. Monge, 1 C.M.A. 95, 2 C.M.R. 1 (1952); UCMJ art. 31(d), 10 U.S.C. § 831(d) (1988); Mil.R.Evid. 304, 305. In order to ascertain the correctness of the military judge’s ruling, we examine the trial court’s decision under all three of these sources of military law. 1. Article 31(b), UCMJ The military judge’s decision to suppress the appellee’s pretrial confession ap pears to have been based on his conclusion that the appellee’s confession was involuntary because his right to counsel under Article 31(b) of the Code had not been honored. Article 31(b) provides: No person subject to [the UCMJ] may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. UCMJ art. 31(b), 10 U.S.C. § 831(b) (1988). As is apparent, nothing in Article 31(b), or for that matter any" }, { "docid": "11290078", "title": "", "text": "commander that a sample was received on that date. There was no discussion accompanying the signing of these documents other than that MSgt Yoke said they needed to be signed before the hospital could take the sample. When asked to distinguish between the contradictory language in the subject line of the second letter “Commander Directed Urinalysis (Consent),” MSgt Yoke testified they used the same letter for both types of urinalyses in order to simplify the amount of paperwork. Following arguments on the issue of the admissibility of the results of the urine testing, the military judge found the appellant voluntarily consented to provide the sample and admitted it. We agree with the Judge’s findings. For the results of the urinalysis testing to be admissible, the appellant’s consent to the search of his urine must have been given voluntarily. Mil.R.Evid. 314(e); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The burden of proving voluntariness by clear and convincing evidence falls on the prosecution. Mil.R.Evid. 314(e)(5). There is no one test for these purposes so we must weigh a number of factors to arrive at a conclusion. One of the factors to determine voluntariness is whether the accused was advised of his Article 31, UCMJ rights. United States v. Rushing, 38 C.M.R. 96 (C.M.A.1967); United States v. Thompson, 12 M.J. 993 (A.F.C.M.R.1982). Another factor is whether the accused was under apprehension at the time of the request or if the consent was given in the coercive atmosphere of a security police or other investigatory agency’s office. United States v. Wallace, 11 M.J. 445 (C.M.A.1981). Another consideration is the age and maturity of the accused. Examining all of these factors in this case, we agree with the military judge that despite an imprecise nomenclature on the second letter signed by appellant, the appellant voluntarily consented to provide a urine sample for drug testing. Addressing the second assignment of error, the appellant argues that the military judge had a sua sponte obligation to give the court members an instruction on the defense of physical inability to comply with" } ]

[ { "docid": "22639288", "title": "", "text": "reach issues not raised in the petition for certiorari, see Yee v. Escondido, 503 U. S. 519, 535 (1992), and it is unnecessary for us to determine whether States must allow recidivism defendants to challenge prior guilty pleas because Kentucky does allow such challenges. We turn, then, to the question before us. It is beyond dispute that a guilty plea must be both knowing and voluntary. See, e. g., Boykin, 395 U. S., at 242; Mc Carthy v. United States, 394 U. S. 459, 466 (1969). “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U. S. 25, 31 (1970). That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the privilege against self-incrimination. Boykin, 395 U. S., at 243. In Boykin the Court found reversible error when a trial judge accepted a defendant’s guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary. Id., at 242. The Sixth Circuit thought rejection of Kentucky’s burden-shifting scheme compelled by Boykin’s statement that the waiver of rights resulting from a guilty plea cannot be “presume[d] . . . from a silent record.” Id., at 243. Kentucky favors the prosecution with only an initial presumption upon proof of the existence of a prior judgment; but because a defendant may be unable to offer rebuttal evidence, the Sixth Circuit reasoned that Kentucky’s procedure improperly permits the Commonwealth to carry its burden of persuasion upon a “bare record of a conviction.” Simmons, 877 F. 2d, at 1278. We see no tension between the Kentucky scheme and Boy-kin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our" } ]

[ { "docid": "17436826", "title": "", "text": "of discretion. See United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000). The district court’s ruling on the alleged due process defects in the underlying immigration proceeding is a mixed question of law and fact subject to de novo review. See United States v. Rangel de Aguilar, 308 F.3d 1134, 1137 (10th Cir.2002). III. A. Although a defendant does not have an absolute right to withdraw a guilty plea, see, e.g., Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978), the court should view a motion to withdraw with favor, granting the defendant “a great deal of latitude.” United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990) (quoting United States v. Hickok, 907 F.2d 983, 986 (10th Cir.1990)). The ultimate decision lies within the trial court’s discretion, however, and we will not reverse unless the trial court acted “unjustly or unfairly.” Siedlik, 231 F.3d at 748 (quoting United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999)). After the court accepts a plea, but before it imposes a sentence, the defendant may withdraw a plea of guilty if he shows a “fair and just reason for the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). This Court determines whether the defendant has shown a fair and just reason for withdrawal with reference to the following factors: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. Rhodes, 913 F.2d at 845 (quoting Hickok, 907 F.2d at 985 n. 2). Mr. Sandoval maintains that his collateral attack on the prior removal proceeding constitutes a fair and just reason for withdrawal of his guilty plea. The Government maintains that Mr. Sandoval fails to present a fair and just reason for withdrawal of his plea regardless of his right to collaterally attack the removal proceeding. The Government" }, { "docid": "8819308", "title": "", "text": "to the counts contained in the January 21, 1997, indictment. Defendant accepted the government’s offer. After a hearing, the district court determined that Defendant freely and voluntarily entered the plea agreement, and that he fully understood the nature of the charges against him and the consequences of his plea. See Fed.R.Crim.P. 11. Accordingly, the Court accepted Defendant’s plea of guilty and entered judgment against him. Ten days after the Rule 11 hearing, Defendant filed a motion to withdraw his plea alleging that his counsel was ineffective and, as a result, his plea was involuntary. The district court denied the motion. Subsequently, a probation officer prepared a presentenee investigation report crediting Defendant with ten criminal history points and a resulting offense level of thirty-seven. At the sentencing hearing, Defendant’s counsel objected to the presentence investigation report. The district court, without making specific findings, overruled the objections and sentenced Defendant to 324-months imprisonment. II. A. Under Fed.R.Crim.P. 32(e), the district court may allow a defendant to withdraw a plea of guilty before sentence is imposed if the defendant provides the court with a fair and just reason for doing so. We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Carr, 80 F.3d 413, 419 (10th Cir.1996). Although it is within the sound discretion of the district court to determine what circumstances justify granting a motion to withdraw a guilty plea, such motions should be “freely allowed, viewed with favor, treated with liberality, and given a great deal of latitude.” Id. We will not reverse the district court unless Defendant can demonstrate that the district court abused its discretion by acting unjustly or unfairly. Id. In determining whether a defendant has carried this burden, we consider the following factors: (1) whether the defendant has asserted his innocence; (2) prejudice to the government; (3) delay in filing defendant’s motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) waste of judicial resources. United States v. Gordon, 4 F.3d 1567, 1572" }, { "docid": "8818978", "title": "", "text": "(3) defendant’s delay in filing the withdrawal motion; (4) inconvenience to the court if the motion is granted; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Id ; see also United States v. Killingsworth, 117 F.3d 1159, 1161-62 (10th Cir.), cert. denied, - U.S. --, 118 S.Ct. 393, 139 L.Ed.2d 307 (1997). We review the district court’s denial of Kramer’s motion to withdraw his guilty plea for abuse of discretion. See Carr, 80 F.3d at 419. Although a defendant’s motion to withdraw a plea before sentencing should be “freely allowed” and “given a great deal of latitude,” id., we will not reverse absent a showing that the trial court acted “unjustly or unfairly.” Id. Applying the seven factors under Gordon, we believe that Kramer failed to demonstrate a fair and just reason for withdrawal of his plea. Although Kramer did assert his innocence, his quarrels with the statute, as we have discussed, are unavailing. Moreover, he does not dispute that he offered the items at issue for sale. Taken together, the remaining factors weigh decisively against the defendant: the government would be prejudiced in that it would have to recall its witnesses; the defendant delayed his motion to withdraw until the eve of sentencing, nearly three months after he was appointed his third attorney and five months after pleading guilty; the court would be inconvenienced if this case went to trial, given that it was set for trial five times and Kramer had been appointed three different attorneys as of the time of the withdrawal motion; Kramer received effective assistance from his trial counsel; his plea was knowing and voluntary; and finally, allowing this case to proceed to trial would be a waste of judicial resources, as it is unlikely that a trial would produce a result any different than his plea. In sum, Kramer has failed to demonstrate that the district court acted unjustly or unfairly in denying his motion to withdraw his guilty plea. We find no abuse of discretion. CONCLUSION We hold that Defendant-Appellant Kramer’s" }, { "docid": "22924916", "title": "", "text": "Mr. Hamilton’s ineffective-assistance claim is “fully developed in the record,” it falls within the narrow exception to our general rule that such claims will be dismissed when brought on direct appeal. See Galloway, 56 F.3d at 1242 (“Some rare claims which are fully developed in the record may be brought either on direct appeal or in collateral proceedings.”); see also United States v. Carr, 80 F.3d 413, 416 n. 3 (10th Cir.1996) (considering ineffective-assistance allegation on direct appeal because a factual record had been fully developed in the district court). We will therefore review the District Court’s denial of Mr. Hamilton’s motion. 2. Whether Mr. Hamilton Established a “Fair and Just Reason” for Withdrawal Our review of a district court’s denial of a motion to withdraw a guilty plea is for abuse of discretion. United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999). Although a motion to withdraw a plea prior to sentencing should be “freely allowed,” we will not reverse a district court’s decision unless the defen dant can show that the court acted “unjustly or unfairly.” Id. (quotations omitted). Under Fed.R.Crim.P. 11(d)(2)(B), a defendant may withdraw a guilty plea before the court imposes a sentence if “the defendant can show a fair and just reason for requesting the withdrawal.” The defendant bears the burden of establishing a “fair and just reason.” United States v. Black, 201 F.3d 1296, 1299 (10th Cir.2000). In determining whether a defendant has met this burden, we consider seven factors: “(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (citing United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991)). Because Mr. Hamilton’s argument for withdrawal focuses on his assertion of innocence and ineffective assistance of counsel, we address these factors first. a. Assertion of Innocence Mr. Hamilton contends that he asserted his innocence on both counts in his" }, { "docid": "22270216", "title": "", "text": "However, he adds, the district court granted his second motion for dental care at the conclusion of the hearing at which he entered his guilty plea. He suggests that the granting of the motion supports his contention that the prosecutor improperly offered him dental care as an inducement for the guilty plea. Under Fed.R.Crim.P. 32(e), “[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” It is the defendant’s burden to establish a “fair and just reason” for the withdrawal of the plea. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993). In Gordon, we set forth seven factors that courts should consider in deciding whether to allow a defendant to withdraw a guilty plea: (1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; (7) whether the granting of the motion would cause a waste of judicial resources. See Gordon, 4 F.3d at 1572. Although we engage in de novo review of the question of whether the plea was knowing and voluntary, see United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994), we review the district court’s denial of the motion to withdraw the guilty plea for an abuse of discretion, considering the seven factors outlined in Gordon. See United States v. Carr, 80 F.3d 413, 419 (10th Cir.1996). We agree with the district court that Mr. Black’s guilty plea was knowing and voluntary. Although there appears to be no dispute that Mr. Black had a toothache when he pleaded guilty, Mr. Black has presented no evidence (other than his own assertions in his motion to withdraw his plea) that the toothache was so severe that it interfered with his ability to consent" }, { "docid": "23397434", "title": "", "text": "there is no strong assertion of innocence” and that it is “quite possible that if this court were to allow withdrawal of the guilty plea ... Rhodes may yet enter into a plea disposition.” Appellant’s Reply Brief at 7. On the basis of Strickland and the lower court record, which we have independently reviewed, we cannot say that Rhodes was deprived of the effective assistance of counsel. IV. Motion to Withdraw Guilty Plea A district court’s denial of a motion to withdraw a plea of guilty is reviewed for abuse of discretion. United States v. Hickok, 907 F.2d 983, 984 (10th Cir.1990). Rule 32(d) of the Federal Rules of Criminal Procedure authorizes the district court to permit withdrawal of a plea prior to sentencing “upon a showing by the defendant of any fair and just reason.” Fed.R.Crim.P. 32(d). The motion for withdrawal “should be viewed with favor” and “[t]he defendant should be given a great deal of latitude.” Id. at 986. In Hickok we noted seven factors established by the Fifth Circuit which are considered when applying the “fair and just reason” standard. These factors are as follows: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; (7) whether the withdrawal would waste judicial resources. Id. at 985 n. 2 (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985)). Rhodes adopts the same argument for withdrawal of his guilty plea that he advanced in challenging the voluntariness of his plea and in claiming ineffective assistance of counsel — namely, the unanticipated severity of the sentence he received. Applying the seven factors outlined above, Rhodes failed to demonstrate a fair and just reason for withdrawal of his plea. First, Rhodes did not assert his innocence of the" }, { "docid": "22924927", "title": "", "text": "Mr. Hamilton has failed to show that, but for counsel’s conduct, he would have insisted on going to trial. Moreover, because Mr. Hamilton’s argument regarding the voluntariness of his plea is based on his allegation of ineffective assistance, he has also failed to show that his plea was involuntary. c. Other Factors Mr. Hamilton argues that the other four factors (prejudice to the government, timing of the motion, inconvenience to the court, and waste of judicial resources) weigh in his favor. Regarding the timing of his motion, even if the delay in filing was reasonable, as Mr. Hamilton argues, a reasonable delay is not a “fair and just reason” for withdrawal. In addition, given that Mr. Hamilton has not asserted his innocence or prevailed on his ineffective-assistance claim, his arguments concerning the remaining factors are irrelevant because these factors speak to the potential burden on the government and the court, rather than the defendant’s reason for withdrawal. That is, even if these factors weigh in a defendant’s favor, they cannot establish a fair and just reason for withdrawal. Indeed, we have previously held that a court need not address prejudice to the government unless a defendant presents a fair and just reason for withdrawal. Hickok, 907 F.2d at 986. Similarly, a court need not address the timing of the defendant’s motion, the inconvenience to the court, or the waste of judicial resources unless the defendant establishes a fair and just reason for withdrawing his guilty plea. In sum, because Mr. Hamilton has not established a fair and just reason for withdrawal, he has failed to show that the District Court abused its discretion by acting unjustly or unfairly in denying his motion to withdraw his guilty plea. B. Sentence Mr. Hamilton also appeals his sentence of 322 months’ imprisonment. We review a sentence imposed by a district court for reasonableness. See United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir.2007). Reasonableness review includes “both procedural and substantive components.” United States v. Cage, 451 F.3d 585, 591 (10th Cir.2006). To assess whether a sentence is procedurally proper, we review the" }, { "docid": "464579", "title": "", "text": "would net a harsher sentence. The district court found Aguas’s claim of innocence not credible because it contradicted his earlier testimony and recent letter. The district judge also noted his personal knowledge of defense counsel’s integrity. On appeal Aguas contends that the court abused its discretion in denying the motion. Upon a showing of a “fair and just reason,” a district court may permit a defendant to withdraw a guilty plea at any time before sentencing. Fed.R.Crim.P. 32(d); United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). Rule 32 is applied liberally, but there is no absolute right to withdrawal. Id. In ruling on the motion, the district court is to consider: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). The defendant has the burden of proving that withdrawal is justified, and the district court’s ruling will not be reversed absent an abuse of discretion. Id. The Carr factors support the court’s ruling. Aguas first moved for withdrawal at sentencing, seven weeks after pleading guilty. He explained that during the interim he had been “thinking and meditating how my attorney influenced me.” Rule 32, however, was not intended “to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice.” Carr, 740 F.2d at 345. Moreover, Aguas was assisted by respected counsel, see id., and he concedes that the transcript indicates that his plea was knowing and voluntary. Aguas argues that withdrawal would not have prejudiced the Government," }, { "docid": "8819309", "title": "", "text": "defendant provides the court with a fair and just reason for doing so. We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Carr, 80 F.3d 413, 419 (10th Cir.1996). Although it is within the sound discretion of the district court to determine what circumstances justify granting a motion to withdraw a guilty plea, such motions should be “freely allowed, viewed with favor, treated with liberality, and given a great deal of latitude.” Id. We will not reverse the district court unless Defendant can demonstrate that the district court abused its discretion by acting unjustly or unfairly. Id. In determining whether a defendant has carried this burden, we consider the following factors: (1) whether the defendant has asserted his innocence; (2) prejudice to the government; (3) delay in filing defendant’s motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) waste of judicial resources. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993). Defendant argues that the district court abused its discretion by not allowing him to withdraw his plea. The crux of Defendant’s argument appears to be that Defendant’s counsel was so unprepared for trial, Defendant was forced to enter into the plea agreement. Defendant’s argument finds little support in the record and would ultimately prejudice the government, waste judicial resources, and increase the burden on trial judges whose case loads are already burgeoning. At Defendant’s initial change of plea hearing, the district court asked Defendant if he wished to plead guilty. Defendant stated that he did, but that he wished to say a few things first. He then proceeded to complain to the court about his attorney. He explained that counsel representing him was his third attorney and, like the previous two, his current attorney had done nothing to prepare his case for trial. The court then asked Defendant if he wished to withdraw his plea. Defendant clearly answered in the negative, but stated that he just wanted to “put this on the record.”" }, { "docid": "22924917", "title": "", "text": "acted “unjustly or unfairly.” Id. (quotations omitted). Under Fed.R.Crim.P. 11(d)(2)(B), a defendant may withdraw a guilty plea before the court imposes a sentence if “the defendant can show a fair and just reason for requesting the withdrawal.” The defendant bears the burden of establishing a “fair and just reason.” United States v. Black, 201 F.3d 1296, 1299 (10th Cir.2000). In determining whether a defendant has met this burden, we consider seven factors: “(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (citing United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991)). Because Mr. Hamilton’s argument for withdrawal focuses on his assertion of innocence and ineffective assistance of counsel, we address these factors first. a. Assertion of Innocence Mr. Hamilton contends that he asserted his innocence on both counts in his motion to withdraw. As to the possession of crack cocaine with intent to distribute, he argues he asserted his “legal innocence” by claiming that the seizure of the drugs violated the Fourth Amendment. With respect to the firearms charge, he argues he asserted his innocence by claiming he did not possess the firearms “in furtherance of’ a drug trafficking crime as required by 18 U.S.C. § 924(c)(1)(A). We find both arguments unconvincing. We begin by noting that a defendant may satisfy the assertion-of-innocence factor by asserting legal innocence. When Rule 32 (now Rule 11) was amended to require that the defendant show a fair and just reason for withdrawal, the Advisory Committee indicated that “whether the movant has asserted his legal innocence is an important factor to be weighed.” Fed. R.Crim.P. 32 Advisory Committee’s note to 1983 amendments; see also United States v. Maxwell, 498 F.3d 799, 801 (8th Cir.2007) (noting that district court may consider assertion of legal innocence); United States v. Rosen, 409 F.3d 535, 546 (2d Cir.2005) (same); United States v. Negron-Narvaez," }, { "docid": "23524065", "title": "", "text": "withdraw his guilty plea for abuse of discretion. United States v. Wade, 940 F.2d 1375, 1376 (10th Cir.1991). We will not reverse unless Appellant can show that the trial court acted unjustly or unfairly. United States v. Gordon, 4 F.3d 1567, 1573 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994). Federal Rule of Criminal Procedure 32(d) states that if a motion to withdraw is made before sentencing, a district court “may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” Although the burden is on the defendant to show such a reason, we have held that motions to withdraw guilty pleas before sentencing are to be freely allowed, viewed with favor, treated with liberality, and given a great deal of latitude. United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991); United States v. Rhodes, 913 F.2d 839, 845 (10th. Cir.1990), cert. denied, 498 U.S. 1122, 111 S.Ct. 1079, 112 L.Ed.2d 1184 (1991). This Court has enumerated the following factors to consider in determining whether an accused has met the burden of establishing that there is a fair and just reason for allowing withdrawal of a guilty plea: (1) whether the defendant has asserted his innocence; (2) prejudice to the government; (3) delay in filing defendant’s motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) whether the plea is knowing and voluntary; and (7) waste of judicial resources. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994). We will take up each of these factors in turn. 1. Assertion of Innocence: The District Court, although highly skeptical of Appellant’s assertion of innocence, held that “this factor only requires that Mr. Carr assert his innocence, which he has done.” Carr I, slip op. at 17-18. We agree with the District Court’s conclusion. This factor weighs in Appellant’s favor. 2. Prejudice to government: Allowing Appellant to withdraw his guilty plea would prejudice the government in several ways. At the time of the" }, { "docid": "23397435", "title": "", "text": "when applying the “fair and just reason” standard. These factors are as follows: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; (7) whether the withdrawal would waste judicial resources. Id. at 985 n. 2 (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985)). Rhodes adopts the same argument for withdrawal of his guilty plea that he advanced in challenging the voluntariness of his plea and in claiming ineffective assistance of counsel — namely, the unanticipated severity of the sentence he received. Applying the seven factors outlined above, Rhodes failed to demonstrate a fair and just reason for withdrawal of his plea. First, Rhodes did not assert his innocence of the cocaine possession charge. To the contrary, Rhodes on two occasions admitted his culpability and even now admits that “there is no strong assertion of innocence.” Appellant’s Reply Brief at 7. Second, although the government does not specifically point to any prejudice, by Rhodes’ own assertions, the government would undoubtedly re-enter plea negotiations and have to undergo the same process it had just completed. Third, Rhodes did not file a written motion to withdraw his plea in advance of the sentencing hearing. Instead, Rhodes orally moved to withdraw his plea when the sentencing hearing was already underway, with no explanation as to why a motion to withdraw the guilty plea had not been submitted earlier. Fourth, the trial court would have had to reschedule another plea hearing and sentencing hearing since by Rhodes own estimation, if he were allowed to withdraw his prior plea, another plea agreement was “quite possible.” Fifth, Rhodes was assisted by counsel, although counsel’s assistance was substantially frustrated by Rhodes’ omission of information about his criminal history. Sixth, as we discussed above," }, { "docid": "22375429", "title": "", "text": "Therefore, without deciding whether the failure to seek an evidentia-ry hearing was objectively unreasonable, we conclude that because present counsel sought an evidentiary hearing, Defendant was not prejudiced by original counsel’s failure to do so. II. Defendant claims that the district court abused its discretion by denying Defendant’s Fed.R.Crim.P. 32(d) motion to withdraw his guilty plea. Prior to sentencing, Defendant sought to withdraw his plea based upon the alleged ineffective assistance of original counsel, outlined supra part I, and based upon the discovery of new evidence. The alleged new evidence is the discovery of the whereabouts of a witness whom Defendant claims could “establish [Defendant’s] innocence in several counts against him and lower the level of his involvement in others, which would directly affect the sentence of [Defendant] under the [ ] Sentencing Guidelines.” Fed.R.Crim.P. 32(d) provides in pertinent part: “[i]f a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” Defendant has the burden of establishing that there is a fair and just reason for allowing withdrawal of his guilty plea, and in determining whether Defendant has met this burden, we consider the following factors: (1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources. United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991). “It is within the sound discretion of the [district] court to determine what circumstances justify granting such a motion.” United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (citation omitted). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion, and we will not reverse unless the defendant can show that the court acted unjustly or unfairly. Id. Defendant’s first contention — ie., that original counsel’s ineffective assistance is a fair and just reason" }, { "docid": "22779292", "title": "", "text": "to withdraw her guilty plea without giving reasons and in not holding an evidentiary hearing. A district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Lampazianie, 251 F.3d 519, 523 (5th Cir.2001) (citation omitted); see also United States v. Mann, 161 F.3d 840, 860 (5th Cir.1998) (“[A] district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.”). A defendant does not have an absolute right to withdraw her guilty plea. United States v. Brewster, 137 F.3d 853, 857 (5th Cir.1998). However, a district court may, in its discretion, permit withdrawal before sentencing if the defendant can show a “fair and just reason.” Id. (citing former Fed.R.Crim.P. 32(e), now located at Rule 11(d)(2)). The defendant bears the burden of establishing a fair and just reason for withdrawing his plea. Id. at 858. This Circuit considers seven factors when deciding whether the defendant has met this standard: whether (1) the defendant asserted his innocence, (2) withdrawal would cause the government to suffer prejudice, (3) the defendant delayed in filing the motion, (4) withdrawal would substantially inconvenience the court, (5) close assistance of counsel was available, (6) the original plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984). The district court’s decision to permit or deny the motion is based on the totality of the circumstances. Brewster, 137 F.3d at 858 (citation omitted). And the district court is not required to make findings as to each of the Carr factors. Id. (citing United States v. Badger, 925 F.2d 101, 104 (5th Cir.1991)). Although defendants are not entitled to an evidentiary hearing, a hearing is required “when the defendant alleges sufficient facts which, if proven, would justify relief.” United States v. Mergist, 738 F.2d 645, 648 (5th Cir.1984) (citation omitted). However, a district court’s decision not to hold an evidentiary hearing is reviewed for abuse of discretion. See United States v. Harrelson, 705 F.2d 733, 737 (5th" }, { "docid": "22348746", "title": "", "text": "she would serve no more time than she is already required to serve on her undischarged sentences”). We, therefore, find that although the district court did not specifically state that it was applying either §§ 5G1.3(c) or 7B1.3, its reasoning indicates that the appropriate factors were considered under the relevant guidelines. Accordingly, we find that the district court did not abuse its discretion by ordering that Puckett’s sentences for the in stant offenses run consecutively to the parole revocation sentence. V. We now turn to Pamela Puckett’s motion to withdraw her guilty plea under Rule 32(d) of the Federal Rules of Criminal Procedure. We review a district court’s refusal to allow a defendant to withdraw a guilty plea for abuse of discretion. United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir.1992) (en banc). The court is to consider the following factors in determining whether the defendant has met her burden under Rule 32(d) of showing a fair and just reason for the withdrawal of the guilty plea: 1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary; 2) whether the defendant has credibly asserted his legal innocence; 3) whether there has been a delay between the entering of the plea and the filing of the motion; 4) whether the defendant has had close assistance of competent counsel; 5) whether withdrawal will cause prejudice to the government; 6) and whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.) cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). In Lambey, however, we stated that a “fair and just” reason for withdrawing a guilty plea is one that “essentially challenges ... the fairness of the Rule 11 proceeding.” Lambey, 974 F.2d at 1394. We emphasized that an “appropriately conducted Rule 11 proceeding ... raise[s] a strong presumption that the plea is final and binding.” Id. In this case, the district court engaged in a thorough Rule 11 colloquy with Pamela Puckett. The court informed her of the mandatory minimum penalty. The" }, { "docid": "8818977", "title": "", "text": "traders such as Kramer. See, e.g., Corrow, 119 F.3d at 804-05 (affirming conviction under § 1170 of individual Native American artifacts trader). In short, because the legal arguments Kramer contends his counsel should have raised are meritless, Torres’ failure to pursue them was neither deficient nor prejudicial under Strickland. We therefore reject Kramer’s claim that his guilty plea was involuntary due to his counsel’s ineffective assistance. B. Trial Comt’s Denial of Kramer’s Motion to Withdraw Plea Fed.R.Crim.P. 32(e) provides that if a defendant moves to withdraw his guilty plea prior to sentencing, “the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” The burden of demonstrating a “fair and just reason” rests with the defendant. See Gordon, 4 F.3d at 1572. In Gordon, we set out the relevant considerations for determining whether a defendant has shown a fair and just reason for permitting withdrawal of the defendant’s guilty plea: (1) whether the defendant has asserted his innocence; (2) prejudice to the government if the motion is granted; (3) defendant’s delay in filing the withdrawal motion; (4) inconvenience to the court if the motion is granted; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Id ; see also United States v. Killingsworth, 117 F.3d 1159, 1161-62 (10th Cir.), cert. denied, - U.S. --, 118 S.Ct. 393, 139 L.Ed.2d 307 (1997). We review the district court’s denial of Kramer’s motion to withdraw his guilty plea for abuse of discretion. See Carr, 80 F.3d at 419. Although a defendant’s motion to withdraw a plea before sentencing should be “freely allowed” and “given a great deal of latitude,” id., we will not reverse absent a showing that the trial court acted “unjustly or unfairly.” Id. Applying the seven factors under Gordon, we believe that Kramer failed to demonstrate a fair and just reason for withdrawal of his plea. Although Kramer did assert his innocence, his quarrels with the statute, as we have discussed, are unavailing. Moreover, he does not dispute that he offered the" }, { "docid": "4647994", "title": "", "text": "his sentencing hearing so that he could remain near his terminally ill grandfather. Following these delays, Garcia moved to withdraw his plea, “indicating] that he ha[d] recently located a witness who will testify on his behalf at trial that she was the one who placed the gun in the car under the passenger seat and that this was done without the defendant’s knowledge.” The district court denied the motion from the bench at an October 2008 sentencing hearing. It then sentenced Garcia to 188 months’ imprisonment, the bottom of the applicable United States Sentencing Guidelines range. A written order followed, explaining in greater detail the court’s conclusion that Garcia had not presented a fair and just reason to withdraw his plea. This appeal followed. II Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may withdraw a guilty plea before sentencing if he “can show a fair and just reason for requesting the withdrawal.” To determine whether a defendant has met this burden, seven factors are considered: “ ‘(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.’ ” United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir.2007) (quoting United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993)). We review the denial of a Rule 11(d)(2)(B) motion for abuse of discretion. Id. at 1213. “Although a motion to withdraw a plea prior to sentencing should be freely allowed, we will not reverse a district court’s decision unless the defendant can show that the court acted unjustly or unfairly.” Id. at 1213-14 (quotations omitted). Garcia based his plea withdrawal motion on a single element of the crime: “that he was not in physical or constructive possession of the firearm.” He does not contest his status as a felon, his burglary, or that police discovered the gun and ammunition in his getaway car. Rather, he asserts that although the gun was in the car, he was not" }, { "docid": "4647995", "title": "", "text": "innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.’ ” United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir.2007) (quoting United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993)). We review the denial of a Rule 11(d)(2)(B) motion for abuse of discretion. Id. at 1213. “Although a motion to withdraw a plea prior to sentencing should be freely allowed, we will not reverse a district court’s decision unless the defendant can show that the court acted unjustly or unfairly.” Id. at 1213-14 (quotations omitted). Garcia based his plea withdrawal motion on a single element of the crime: “that he was not in physical or constructive possession of the firearm.” He does not contest his status as a felon, his burglary, or that police discovered the gun and ammunition in his getaway car. Rather, he asserts that although the gun was in the car, he was not guilty of possession because he did not know the gun was there. Cf. United States v. Hanrahan, 508 F.3d 962, 968-69 (10th Cir.2007) (defining constructive possession). Garcia contends that after entering his plea, he discovered a witness who would testify that she placed the gun in the car without his knowledge. Based on this new witness, he argues that he could present a “legally cognizable defense” to possession. However, Garcia is not entitled to withdraw his plea simply because he possesses a non-frivolous defense theory; rather, on appeal, he must show that the district court “acted unjustly or unfairly.” Hamilton, 510 F.3d at 1214 (quotation omitted). We discern no such injustice or unfairness in this case. The district court identified the seven factors that should be considered in deciding a Rule 11(d)(2)(B) motion. Although it focused on some factors more than others, it reasonably determined that they weighed against permitting Garcia to withdraw his plea. Regarding the first factor, Garcia has technically asserted his innocence, but as he describes her testimony, the new witness would" }, { "docid": "22375430", "title": "", "text": "fair and just reason.” Defendant has the burden of establishing that there is a fair and just reason for allowing withdrawal of his guilty plea, and in determining whether Defendant has met this burden, we consider the following factors: (1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources. United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991). “It is within the sound discretion of the [district] court to determine what circumstances justify granting such a motion.” United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (citation omitted). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion, and we will not reverse unless the defendant can show that the court acted unjustly or unfairly. Id. Defendant’s first contention — ie., that original counsel’s ineffective assistance is a fair and just reason for withdrawal of his guilty plea — fails in light of our conclusion, supra part I, that Defendant did not receive ineffective assistance of counsel. We also reject Defendant’s claim of new evidence as a basis for withdrawing his plea. Defendant has never asserted that he is innocent of the count to which he pleaded guilty, and Defendant admits that the alleged new witness could not offer any testimony concerning this count. See United States v. Ramos, 810 F.2d 308, 312 (1st Cir.1987) (motion to withdraw can be denied if defendant fails to raise cognizable defense to charges). Furthermore, although the government concedes that there was no undue delay in the filing of Defendant’s motion and that prejudice to the government is not great, Defendant received assistance of counsel and the district court ensured that Defendant’s plea was voluntary and knowing by meticulously complying with the requirements of Fed.R.Crim.P. 11. Moreover, Defendant’s essential complaint is with the length of his sentence, and dissatisfaction with the length of a sentence is an insufficient reason to withdraw" }, { "docid": "5856784", "title": "", "text": "basis supporting a finding of guilty on the § 924(c) charge. The district court denied Killingsworth’s motion, reasoning that there was sufficient evidence that Killingsworth had used his gun in connection with his drug offenses, both by displaying it while transactions took place and by employing it to intimidate people into paying their debts for drugs purchased from him. Killingsworth was then sentenced to sixty months confinement on Count One and to sixty months confinement on Count 19, to run consecutively. Killingsworth now appeals both the denial of his motion to withdraw his guilty plea and the denial of his motion to suppress. DISCUSSION A. Motion to Withdraw the Plea Fed.R.Crim.P. 32(e) provides that “[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” The defendant bears the burden of showing that a denial of a motion to withdraw a plea was not “fair and just,” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), cert. denied, 510 U.S. 1184, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994), and we review the denial of such a motion for an abuse of discretion. United States v. Guthrie, 64 F.3d 1510, 1513 (10th Cir.1995). In Gordon, we outlined seven factors that courts should consider in determining whether the defendant has shown a fair and just reason for allowing withdrawal of a guilty plea: (1) whether the defendant has asserted innocence; (2) prejudice to the government if the motion is granted; (3) whether the defendant has delayed filing the motion to withdraw his plea; (4) inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel during the plea; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Gordon, 4 F.3d at 1572. Killingsworth’s argument that there is no longer a factual basis for his conviction under § 924(c) goes to the first factor we consider under Gordon, that is, whether the defendant claims" } ]

[ { "docid": "20349239", "title": "", "text": "specific issue. International Association of Heat & Frost Insulation & Asbestos Workers v. Leona Lee Corporation, 434 F.2d 192 (5th Cir., 1970). The trial judge to whom an application for injunction is made has no authority to decide the substance of the question for arbitration. Rather he must only decide whether or not the parties have bound themselves to arbitrate that subject matter. Lodge No. 12, Etc. v. Cameron Iron Works, Inc., 292 F.2d 112 (5th Cir., 1961); Communications Workers of America v. Southwestern Bell Telephone Co., 415 F.2d 35, 38 (5th Cir., 1969). Since Lincoln Mills it has become increasingly clear that arbitration is the central institution for the administration of the collective bargaining contract. In order to effectuate this policy, it is necessary that a uniform standard of arbitrability be applied, regardless of whether the suit asks for the injunction of a strike, Boys Market, or the specific performance of an arbitration clause. Communications Workers of America v. Southwestern Bell, swpra. That test is the same as was stated in Cameron, supra, and in Southwestern Bell, supra, and has been called one of “arguable arbitrability.” Our examination is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract and which is “arguably arbitrable.” See also Oil, Chemical & Atomic Workers International Union v. Southern Union Gas Co., 379 F.2d 774 (5th Cir., 1967); Local No. 787 v. Collins Radio Co., 317 F.2d 214 (5th Cir., 1963). Applying this standard of “arguable arbitrability” to the contract at issue, it is plain that the union’s position and the district court finding that the dispute was not within the scope of the contract’s arbitration clause (because it .was a prospective modification of the contract) cannot stand. Whether or not the company’s proposal is a prospective modification of the contract, the use of part-time employees with their own seniority schedule requires consideration of the application of the collective agreement’s seniority clause. As such, it is a claim which on its face is governed by the contract and is arguably arbitrable. United" } ]

[ { "docid": "8901555", "title": "", "text": "the suggestion that we should now enunciate those standards which should guide the arbitrator in his determination of the existence, nature and remedy for implementing any employee rights accruing under and surviving the expiration of the collective bargaining agreement, so that he will know definitely whether any award he may make will “draw its essence from the collective bargining agreement.” To do this would be to intrude in a domain not ours and to invert the whole order of procedure in this delicate field of labor relations. . Boston Mutual Life Insurance Co. v. Insurance Agents International, 1 Cir., 1958, 258 F.2d 516 (court function); Brass & Copper Workers v. American Brass Co., supra (court function); Radio Corp. of America v. Association of Professional Engineering Personnel, 3 Cir., 1961, 291 F.2d 105 (arbitrator function); International Association of Machinists, etc. v. Hayes Corp., 5 Cir., 1961, 296 F.2d 238 (citing cases which hold that it is the arbitrator’s function). . Arbitrator’s function: Philadelphia Dress Joint Board, etc. v. Sidele Fashions, Inc., E.D.Pa., 1960, 187 F.Supp. 97; Local 971, United Automobile Workers, AFL-CIO v. Bendix-Westinghouse Automotive Brake Co., N.D.Ohio, 1960, 188 F.Supp. 842; Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., W.D.Pa., 1959, 188 F.Supp. 225, affirmed, 3 Cir., 1960, 283 F.2d 93; United Cement, etc. Workers International Union, AFL-CIO v. Allentown-Portland Cement Co., E.D.Pa., 1958, 163 F.Supp. 816; Insurance Agents International Union, AFL v. Prudential Ins. Co., E.D.Pa., 1954, 122 F.Supp. 869 (purporting to apply state law). Court function: Truck Drivers v. Grosshans & Petersen, D.Kan., 1962, 51 L.R.R.M. 2116; General Tire & Rubber Co. v. Local 512, United Rubber Workers of America, AFL-CIO, D.R.I., 1961, 191 F.Supp. 911, affirmed, 1 Cir., 1961, 294 F.2d 957; United Brick & Clay Workers, etc. v. Gladding, McBean & Co., S.D.Calif., 1961, 192 F.Supp. 64; Brass & Copper Workers, etc. v. American Brass Co., E.D.Wis., 1959, 172 F.Supp. 465, affirmed, 7 Cir., 272 F.2d 849, cert. denied, 1960, 363 U.S. 845, 80 S.Ct. 1609, 4 L.Ed.2d 1728; International Union of Operating Engineers, etc. v. Monsanto Chemical Co., W.D.Ark., 1958, 164 F.Supp. 406. ." }, { "docid": "17261059", "title": "", "text": "submitted to arbitration. Arbitration is to be ordered “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 582-83, 80 S.Ct. at 1352-1353, 4 L.Ed.2d at 1417 (emphasis added), quoted with approval in Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 377-78, 94 S.Ct. 629 636-637, 38 L.Ed.2d 583, 592 (1974). Haig offered evidence of the negotiating history bearing upon the interpretation of the “Work Covered” clause, and complains that it was excluded. Evidence that the parties intended to exclude a particular type of claim from arbitration may be relevant and admissible. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 584-85, 80 S.Ct. at 1354, 4 L.Ed.2d at 1418-1419; Pacific Northwest Bell Telephone Co. v. Communication Workers of America, 310 F.2d 244 (9th Cir. 1962). See also West Coast Telephone Co. v. Local 77, International Brotherhood of Electrical Workers, 431 F.2d 1219, 1221 n. 4 (9th Cir. 1970). The evidence offered here, however, went not to the meaning of the arbitration clause, but to the meaning of the substantive clause upon which the merits of the dispute depended. That question was for the arbitrator. Affirmed. . The case is not moot because arbitration has been completed. If this court agreed that the dispute was not arbitrable, the arbitration award would be unenforceable. Nor does the Union’s filing of an unfair labor practices charge preempt the court’s jurisdiction to entertain this suit to require arbitration under § 301, 29 U.S.C. § 185. See Lodge 1327, Int’l Ass’n of Machinists & Aerospace Workers v. Fraser & Johnston Co., 454 F.2d 88, 90-91 (9th Cir. 1971). . These portions of the Collective Bargaining Agreement provide in pertinent part: Section II, RECOGNITION: A. For the purposes of collective bargaining the Employer recognizes the Union as the sole agency, representing all the employees of member companies who perform the work covered by Section III hereof, and the Union" }, { "docid": "14224946", "title": "", "text": "Int. Union, Local 425 v. NLRB, 136 U.S.App.D.C. 12, 16, 419 F.2d 314, 318 (1969). . But see favorable dicta in Office & Professional Employees Int. Union, Local 425, supra note 21, 136 U.S.App.D.C. at 16, 419 F.2d at 318. . Boys Markets, Inc., supra note 18, 398 U.S. at 251, 90 S.Ct. at 1593. . We join the Second Circuit in affirming the Collyer doctrine. See Nabisco, Inc. v. NLRB, 479 F.2d 770 (1973), enforcing 198 NLRB No. 4 (1972). Though other courts have acknowledged the doctrine witli apparent approval, see, e. g., NLRB v. Int. Assn of Bridge, Struc., Ornamental & Reinforced Iron Wkrs Union, Local 378, 9 Cir., 473 F.2d 816 (1973); Lodge 1327, Int. Assn of Machinists & Aerospace Wkrs v. Fraser & Johnston Co., 9 Cir., 454 F.2d 88, 91 (1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 119 (1972); NLRB v. Thor Power Tool Co., 7 Cir., 351 F.2d 584, 587 (1965), no other circuit seems to have directly passed on Collyer. . Of course, administrative or judicial burdens would never provide excuse for the Board’s abdication of its responsibilities to implement the National Labor Relations Act. However, as long as the Board does not defer to arbitration awards which are either unfairly developed or inconsistent with the Act, a discretionary use of its conflict-resolving resources is well within the design of Congress. As stated in the Senate report on the 1947 amendments to the Act, the Board is to develop * * * a policy of entertaining under these provisions only such cases alleging violation of contract as cannot be settled by resort to the machinery established by the contract itself, voluntary arbitration, or if necessary by litigation in court. Any other course would engulf the Board with a vast number of petty cases that could best be settled by other means. In short, the intention of the committee in this regard is that cases of contract violation be entertained on a highly selective basis, when it is demonstrated to the Board that alternative methods of settling the dispute have" }, { "docid": "951658", "title": "", "text": "of this Agreement or any alleged violations thereof, which cannot be settled otherwise. Such Joint Standing Committee shall meet within fifteen (15) days after any question or differences shall have been referred to it for decision by the authorized representatives of either party to this Agreement. It thus appears that the question determined by the district court was saved by agreement of the parties for the Joint Standing Committee. And this is also the reason why appellant union was entitled to no relief. In Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 5 Cir., 1963, 317 F.2d 214, we said: “That which the parties have committed to the arbiter is for the arbiter alone, not the Court”. 317 F.2d at 220. This is the rationale of International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 1972, 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248. The only questions for the court are whether the parties have agreed to arbitration, and the scope of the arbitration clause. Here the parties have so agreed and the scope of the arbitration clause embraces the questions presented. The question involving the bar of the failure to form the arbitration board in thirty days (Agreement, Section 1(2)), and whether there was a modification of the agreement so as to provide a disinterested person as a fifth arbitrator are for the Joint Standing Committee under the agreement and not for the court. Affirmed. . SECTION I. * * * * (2) It is further agreed that all disputes regarding a new contract and scale to become effective at the expiration of this contract, which cannot be settled by conciliation, shall be determined by arbitration as hereinafter provided, and this contract shall remain in force until all disputes are settled by conciliation or arbitration, provided that the arbitration board is formed within thirty (30) days from the date of the request of either party to this contract that said arbitration board be formed in accordance with the provisions of this contract. In the event the" }, { "docid": "16332590", "title": "", "text": "of Mr. Seibel’s decision should result in a definite conclusion on the basis of any award made.” Defendant specifically requested plaintiff to submit the questions to an arbitrator. Plaintiff responded, September 26, 1960, stating that it was “unwill ing to stay the filing of this suit based upon the possibility of success of any of these recommendations,” and, thereafter, suit was filed. Enforcement of the arbitrator’s decision is not possible here, because it is not presently self-executing. By its terms the decision reserves to the parties the practical application of the general rules which it states. Thus, the decision constitutes an interpretation of the Contract, which becomes a part of the Contract, and if the parties cannot agree upon the application of that interpretation there would seem to be a basis for a new grievance and fresh invocation of the grievance machinery of Article VII of the Contract. It is the policy of National Labor legislation to promote the arbitral process, Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957) ; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America, AFL-CIO v. Warrior & Gulf Nav. Co,, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed. 1424 (1960); Local 174, Teamsters, Chauffeurs, etc., v. Lucas Flour Co., 80 S.Ct. 571 (decided March 5, 1962), and International Ass’n of Machinists, Local Lodge 1652 v. International Aircraft Services, Inc., 302 F.2d 808 (4 Cir., decided March 21, 1962). Hence, it is the function of the District Courts in suits brought under § 301 of the Labor Management Eelations Act, supra, to compel performance by a reluctant party of its agreement to submit disputes to arbitration and to enforce the results of that arbitration, unless the arbitrator has clearly exceeded the letter and spirit of the collective bargaining agreement from which his authority springs. The policy to compel arbitration where there is a grievance cognizable by an" }, { "docid": "951657", "title": "", "text": "the date of the request for arbitration. The board not having been formed in the requisite thirty day period, dismissal followed. We conclude that this was an erroneous approach to the question of dismissal. Section 16 of the agreement sets out the procedural law of the shop as it was chosen by the parties here. It is the only provision of the agreement addressed to any form of an arbitration board. It provides: SECTION 16. JOINT STANDING COMMITTEE (1) Should any question or difference arise between the parties to this Agreement, said question or differences shall immediately be referred in writing to the Joint Standing Committee. (2) A Joint Standing Committee shall be maintained, to consist of two representatives of the Publisher, and two representatives of the Union, and in the ease of a vacancy, prolonged absence, or refusal of a representative to act, another shall be immediately appointed in his place. To this committee shall be referred all questions which may arise as to the construction to be placed upon any of the clauses of this Agreement or any alleged violations thereof, which cannot be settled otherwise. Such Joint Standing Committee shall meet within fifteen (15) days after any question or differences shall have been referred to it for decision by the authorized representatives of either party to this Agreement. It thus appears that the question determined by the district court was saved by agreement of the parties for the Joint Standing Committee. And this is also the reason why appellant union was entitled to no relief. In Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 5 Cir., 1963, 317 F.2d 214, we said: “That which the parties have committed to the arbiter is for the arbiter alone, not the Court”. 317 F.2d at 220. This is the rationale of International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 1972, 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248. The only questions for the court are whether the parties have agreed to arbitration, and the scope of" }, { "docid": "7331701", "title": "", "text": "citations, quotations, and ellipses omitted). While arbitration is available to parties to resolve disputes under a collective bargaining agreement, the NLRA provides a different mechanism to resolve jurisdictional disputes between two or more unions. Section 8(b)(4)(ii)(D) of the NLRA, 29 U.S.C. § 158(b)(4)(ii)(D), makes it an unfair labor practice for a labor organization to threaten, coerce or restrain any person engaged in commerce with the object of forcing or requiring any employer to assign particular work to employees belonging to one labor organization rather than employees belonging to another labor organization. USCP-Wesco, Inc. v. NLRB, 827 F.2d 581, 583 (9th Cir.1987). Section 10(k) of the same act states that whenever a section 8(b)(4)(ii)(D) charge has been levied, “the Board is empowered and directed to hear and determine the dispute.” Id. (quoting 29 U.S.C. § 160(k)). In resolving a jurisdictional dispute, the NLRB is not bound by the applicable collective bargaining agreements. Rather, “the Board may consider and weigh all factors that it deems relevant in light of its experience and common sense.” J.F. White Contracting Co. v. Local 103 Int’l Brotherhood of Electrical Workers, 890 F.2d 528, 530 (1st Cir.1989). The Board has explained: Each case will have to be decided on its own facts. The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joints boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer’s business. International Ass’n of Machinists, Lodge No. 1743, AFL-CIO & J.A. Jones Constr. Co., 135 N.L.R.B. 1402, 1410-11 (1962). We have previously held that when an arbitrator awards work to one union, but the NLRB gives the work to another union, the NLRB’s determination supersedes the arbitration award. See International Longshoremen’s and Warehousemen’s Union, Local 32 v. Pacific Maritime Ass’n, 773 F.2d 1012, 1016 (9th Cir.1985) (hereinafter ILWU, Local 32), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90" }, { "docid": "14224945", "title": "", "text": "Co., supra note 14; Boys Markets, Inc., supra note 18. . Carey v. Westinghouse Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 408, 11 L.Ed.2d 320 (1964). The Court adopted the words of International Harvester Co., 138 NLRB 923, 925-926 (1962): There is no question that the Board is not precluded from adjudicating unfair labor practice charges even .though they might have been the subject of an arbitration proceeding and award. * * * However, it is equally well established that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act. . NLRB v. Auburn Rubber Co., 10 Cir., 384 F.2d 1 (1967); Ramsey v. NLRB, supra note 1, 327 F.2d 784. See also language favorable to the Spielberg policy in NLRB v. Horn & Hardart Co., 2 Cir., 439 F.2d 674 (1971); John Klann Moving & Trucking Co. v. NLRB, 6 Cir., 411 F.2d 261, 263 (1969); Office & Professional Employees Int. Union, Local 425 v. NLRB, 136 U.S.App.D.C. 12, 16, 419 F.2d 314, 318 (1969). . But see favorable dicta in Office & Professional Employees Int. Union, Local 425, supra note 21, 136 U.S.App.D.C. at 16, 419 F.2d at 318. . Boys Markets, Inc., supra note 18, 398 U.S. at 251, 90 S.Ct. at 1593. . We join the Second Circuit in affirming the Collyer doctrine. See Nabisco, Inc. v. NLRB, 479 F.2d 770 (1973), enforcing 198 NLRB No. 4 (1972). Though other courts have acknowledged the doctrine witli apparent approval, see, e. g., NLRB v. Int. Assn of Bridge, Struc., Ornamental & Reinforced Iron Wkrs Union, Local 378, 9 Cir., 473 F.2d 816 (1973); Lodge 1327, Int. Assn of Machinists & Aerospace Wkrs v. Fraser & Johnston Co., 9 Cir., 454 F.2d 88, 91 (1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 119 (1972); NLRB v. Thor Power Tool Co., 7 Cir., 351 F.2d 584, 587 (1965), no other circuit seems to have directly passed on Collyer. . Of course, administrative" }, { "docid": "17261060", "title": "", "text": "Workers, 431 F.2d 1219, 1221 n. 4 (9th Cir. 1970). The evidence offered here, however, went not to the meaning of the arbitration clause, but to the meaning of the substantive clause upon which the merits of the dispute depended. That question was for the arbitrator. Affirmed. . The case is not moot because arbitration has been completed. If this court agreed that the dispute was not arbitrable, the arbitration award would be unenforceable. Nor does the Union’s filing of an unfair labor practices charge preempt the court’s jurisdiction to entertain this suit to require arbitration under § 301, 29 U.S.C. § 185. See Lodge 1327, Int’l Ass’n of Machinists & Aerospace Workers v. Fraser & Johnston Co., 454 F.2d 88, 90-91 (9th Cir. 1971). . These portions of the Collective Bargaining Agreement provide in pertinent part: Section II, RECOGNITION: A. For the purposes of collective bargaining the Employer recognizes the Union as the sole agency, representing all the employees of member companies who perform the work covered by Section III hereof, and the Union recognizes the Employer as the sole agency representing its member companies. Section III, WORK COVERED: A. All work defined in Appendix A hereof and performed in companies’ plants at Modesto, California, including receiving stations and buildings and lots where materials are processed or stored. This provision shall ap ply to exclude agriculture labor and operations of bona fide agriculture departments, office and administrative employees, buyers, salaried supervisors, engineers and technical employees. This provision is not intended to exclude any new job that may develop in the processing, handling or sorting of products or materials. Box repair which at the present time is being done by the union members on the premises of a plant being covered by this Agreement and which is hereinafter removed to another location within the jurisdiction of Local 748 is covered by this Agreement, if the reason for such removal is to escape from the provisions of this Agreement. (Emphasis added.) The Union argues that “at Modesto,” as distinguished from “in Modesto,” includes the immediate environs of the city. The plant" }, { "docid": "23199832", "title": "", "text": "arbitration provisions are construed with great liberality. See, e.g. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 Sup.Ct. 1347, 4 L.Ed.2d 1409 (1960). Moreover, Holly is quite correct in its argument that simply because a court would compel arbitration in a particular dispute does not necessarily mean that it would approve of everything or anything which the arbitrator might decide in resolving the dispute. See Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966); International Ass’n of Machinists AFL-CIO v. Hayes Corp., 296 F.2d 238 (5th Cir. 1961), rehearing denied, 316 F.2d 90 (1963). However, if the scope of judicial review in post-award proceedings were as broad as the appellant suggests, we would be tempted to slip into the practice, so prevalent before the “Trilogy”, of “deciding the merits in the guise of adjudicating the court-reserved issue of the scope * * * of the agreement to arbitrate.” United States Gypsum Co. v. United Steelworkers, 384 F.2d 38, 49 (5th Cir. 1967), cert. denied, 389 U.S. 1042, 88 S.Ct. 783, 19 L.Ed.2d 832 (1968) (citations omitted). See also Safeway Stores v. American Bakery & Confectionery Workers International Union, 390 F.2d 79 (5th Cir. 1968); Boeing Co. v. International Ass’n of Machinists, 381 F.2d 119 (5th Cir. 1967); Dallas Typographical Union No. 173 v. A. H. Belo Corp., 372 F.2d 577 (5th Cir. 1967). Accordingly, while the courts must insure that the arbitrator’s award “draws its essence from the collective bargaining agreement” and that his decision does not “manifest an infidelity to this obligation,” 363 U.S. at 597, they must resist “the temptation to ‘reason out’ a la judges the arbiter’s award to see if it passes muster.” Safeway Stores v. American Bakery & Confectionery Workers International Union, supra at 83. Therefore, if, on its face, the award represents a plausible interpretation of the contract in the context of the parties’ conduct, judicial inquiry ceases and the award must be affirmed. See San Francisco-Oakland Newspaper Guild v. Tribune Publishing Co., 407 F.2d 1327 (9th Cir. 1969). See also Anaconda Co. v." }, { "docid": "11411430", "title": "", "text": "regarded the majority opinions as implicitly rejecting “the availability of the Federal Arbitration Act to enforce arbitration clauses in collective bargaining agreements . . 353 U.S. at 466, 77 S.Ct. at 926. The Supreme Court has not ruled on the issue since the Lincoln Mills case, however, and the courts of appeals have charted an uneven path. One immediate difficulty is created by the Act’s injunction that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Most of the appellate courts which have dealt with this issue have limited this provision to those cases where the union or the employer is actually engaged in the transportation industry. See, e. g., Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. General Electric Co., 2 Cir. 1969, 406 F.2d 1046. At least three circuits, the Second, Sixth and Seventh, have expressly held the Act applicable to suits involving the arbitration of collective bargaining disputes. See Bell Aerospace Co. Division of Tex-tron, Inc. v. Local 516, UAW, 2 Cir. 1974, 500 F.2d 921, 923; Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. General Electric Co., supra; American Broadcasting Companies, Inc. v. American Federation of Television and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976); Makress Lingerie, Inc. v. Int’l Ladies Garment Workers' Union, 395 F.Supp. 110 (S.D.N.Y.1975); Chattanooga Mailers v. Chattanooga News-Free Press, 6 Cir. 1975, 524 F.2d 1305; Pietro Scalzitti Co. v. Int’l Union of Operating Engineers, Local No. 150, 7 Cir. 1965, 351 F.2d 576. At least three other circuits, including this Circuit, have recently held the Act applicable to disputes concerning the employment contracts of brokers and their brokerage firms. See Dickstein v. duPont, 1 Cir. 1971, 443 F.2d 783; Tullis v. Kohlmeyer & Co., 5 Cir. 1977, 551 F.2d 632; Legg, Mason & Co., Inc. v. Mackall & Coe, Inc., 351 F.Supp. 1367 (D.D.C.1972). The Third Circuit seems to have developed a conflict on the issue. Compare Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 3 Cir., 397" }, { "docid": "12544917", "title": "", "text": "to decide this issue, and we do not consider this case an appropriate vehicle for doing so. Like the employer before us in Lodge 1327, International Association of Machinists & Aerospace Workers v. Fraser & Johnston Co., 9 Cir., 1971, 454 F.2d 88, Menasco did not raise the laches issue in the district court, even though it had ample opportunity to do so. In its answer to the Union’s petition to compel arbitration, Menasco raised a number of affirmative defenses; laches was not among them. Under such circumstances we follow the procedure established in Fraser & Johnston, supra, and decline to consider the Company’s belated contention. 454 F.2d at 92. C. District Court’s specification of the issues for arbitration. Menasco objects to the form of the court’s order compelling arbitration, insofar as it defined and framed the specific questions which the arbitrator is empowered to decide. Once the court has determined that the issues are arbitrable because covered by the collective bargaining agreement on its face, the Company contends, the judicial function is ended. The arbitrator must then be free to frame the issues in light of his interpretation of the collective bargaining agreement, and even to refuse to consider the merits of some of the issues found by the court to be arguably arbitrable. Those prerogatives of the arbitrator, it is argued, are circumscribed by the district court’s detailed and specific delineation of the issues to be submitted to arbitration. We doubt that the arbitrator will feel seriously limited by the district court’s order in his ability to consider all aspects of the issues presented to him. However, we agree that the flexible nature of the arbitration process requires that the arbitrator be given as much freedom as possible — from the framing of the issues themselves to the fashioning of appropriate remedies. The district court’s function in the process is essentially ended once it has found the collective bargaining agreement susceptible of an interpretation which would cover the dispute; it should not attempt in the usual case to frame the precise question which the arbitrator must decide. See" }, { "docid": "12544916", "title": "", "text": "of summary judgment in favor of the Union, so that Menasco will have an opportunity to present to the court a defense based upon the equitable doctrine of laches. We disagree. Those circuit courts which have considered the question have disagreed on whether laches may be properly raised as a defense to an action to compel arbitration. The Fourth Circuit has held that the issue of laches, like the issue of compliance with procedural requirements of the collective bargaining agreement, should be considered by the arbitrator, not by the courts. Tobacco Workers International Union, Local 317 v. Lorillard Corp., 4 Cir., 1971, 448 F.2d 949, 958. The Sixth and Seventh Circuits, plus the Fifth Circuit by implication, have reached the opposite conclusion. Amalgamated Clothing Workers of America v. Ironall Factories Co., 6 Cir., 1967, 386 F.2d 586, 591-592; International Union of Operating Engineers, Local 150 v. Flair Builders, 7 Cir., 1971, 440 F.2d 557, 559-560; International Assoc, of Machinists v. Hayes Corp., 5 Cir., 1961, 296 F.2d 238, 244. We have not yet had occasion to decide this issue, and we do not consider this case an appropriate vehicle for doing so. Like the employer before us in Lodge 1327, International Association of Machinists & Aerospace Workers v. Fraser & Johnston Co., 9 Cir., 1971, 454 F.2d 88, Menasco did not raise the laches issue in the district court, even though it had ample opportunity to do so. In its answer to the Union’s petition to compel arbitration, Menasco raised a number of affirmative defenses; laches was not among them. Under such circumstances we follow the procedure established in Fraser & Johnston, supra, and decline to consider the Company’s belated contention. 454 F.2d at 92. C. District Court’s specification of the issues for arbitration. Menasco objects to the form of the court’s order compelling arbitration, insofar as it defined and framed the specific questions which the arbitrator is empowered to decide. Once the court has determined that the issues are arbitrable because covered by the collective bargaining agreement on its face, the Company contends, the judicial function is ended. The" }, { "docid": "7331702", "title": "", "text": "Co. v. Local 103 Int’l Brotherhood of Electrical Workers, 890 F.2d 528, 530 (1st Cir.1989). The Board has explained: Each case will have to be decided on its own facts. The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joints boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer’s business. International Ass’n of Machinists, Lodge No. 1743, AFL-CIO & J.A. Jones Constr. Co., 135 N.L.R.B. 1402, 1410-11 (1962). We have previously held that when an arbitrator awards work to one union, but the NLRB gives the work to another union, the NLRB’s determination supersedes the arbitration award. See International Longshoremen’s and Warehousemen’s Union, Local 32 v. Pacific Maritime Ass’n, 773 F.2d 1012, 1016 (9th Cir.1985) (hereinafter ILWU, Local 32), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986). However, Sea-Land argues for more. Sea-Land contends that a subsequent 10(k) determination invalidates in all respects a prior arbitration award. In ILWU, Local 32, we reasoned: “Congress intended to make the section 10(k) proceeding the peaceful and binding final determination of a disputed work assignment.” Id. at 1020 (quotation omitted). Thus, the court, following the Fifth and Sixth Circuits, concluded that “a section 10(k) determination made subsequent to an arbitration award will effectively void the preceding award.” Id. (citing United Auto Workers v. Rockwell Int’l Corp., 619 F.2d 580, 583 (6th Cir.1980), and New Orleans Typographical Union No. 17 v. NLRB, 368 F.2d 755, 767 (5th Cir.1966)). This result occurs even without any action by either the loser of the arbitration or the NLRB. Id. ILWU, Local 32 does not, however, support Sea-Land’s “complete rejection” theory. The NLRB, at least in its jurisdictional dispute-resolution capacity, is simply not an arbiter of collective bargaining agreement disputes. To allow the NLRB to supersede arbitration awards beyond what is needed to resolve the specific jurisdictional" }, { "docid": "23456070", "title": "", "text": "597, 80 S.Ct. 1358. The reported decisions make it abundantly clear that where the contract is not explicit concerning the proper remedy, the arbitrator is given wide latitude in fashioning an appropriate remedy. Enterprise Wheel, supra, Int’l Ass’n of Machinists, District No. 8 A.F.L.-C.I.O. v. Campbell Soup Co., 7 Cir., 406 F.2d 1223, cert, denied, 396 U.S. 820, 90 S.Ct. 57, 24 L.Ed.2d 70 (1969); and Lodge No. 12, Dist. No. 37, Int’l Ass’n of Machinists v. Cameron Ironworks, 5 Cir., 292 F.2d 112, cert, denied, 368 U.S. 926, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961). “When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations.” Enterprise Wheel, supra, 363 U.S. at 597, 80 S.Ct. at 1361. Accordingly, we hold that the arbitrator’s decision and award was not arbitrary and capricious but was wholly justified. On the authority of Enterprise Wheel, supra; Local 7-6H; Campbell Soup, supra, together with San Francisco-Oakland Newspaper Guild v. Tribune Publishing Co., 9 Cir., 407 F.2d 1327 (1969); and Ludwig Honold Mfg. Co. v. Fletcher, 3 Cir., 405 F.2d 1123 (1969), we affirm. Affirmed. . Section 301(a), 29 U.S.C.A. § 185(a), provides: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” . Office & Professional Employees International Union, Local 28, AFL-CIO. . District No. 8, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter District No. 8). . The following letter was attached to the collective bargaining agreement: January 1, 1964 LETTER OP UNDERSTANDING It is understood and agreed between District No. 8, International Association of Machinists" }, { "docid": "11004274", "title": "", "text": "district court’s order, contending that the arbitrator’s award must be vacated because it does not draw its essence from the parties’ agreements. II. DISCUSSION Our review of an arbitrator’s award under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, is limited to determining whether: (1) the parties agreed to arbitrate; and (2) the arbitrator had the power to make the award that he made. Daniel Const. Co. v. International Union of Operating Eng’rs, Local 513, 738 F.2d 296, 301 (8th Cir.1984) (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960)). In the present case, the parties do not dispute that they agreed to arbitrate. Consequently, our analysis focuses on whether the arbitrator had the power to enter the award. The Supreme Court long ago determined that a labor arbitration award should be enforced “so long as it draws its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). This extraordinary level of deference has not diminished in recent years. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987). A reviewing court, however, may vacate an arbitration award when the award does not derive its essence from the collective bargaining agreement, or when the arbitrator ignores the plain language of the contract. Iowa Mold Tooling Co., Inc. v. Teamsters Local Union No. 828, 16 F.3d 311, 312 (8th Cir.1994) (citing Coca-Cola Bottling Co. v. Teamsters Local Union No. 688, 959 F.2d 1438, 1440 (8th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992)); see also Northivest Airlines, Inc. v. International Ass’n of Machinists & Aerospace Workers, Air Transport Dist. Lodge No. 113, 894 F.2d 998, 999-1000" }, { "docid": "20947740", "title": "", "text": "enunciate the doctrine that a union may not sue under § 301 to enforce the uniquely personal rights of its employee members. Local Lodge 2040, International Ass’n of Machinists, AFL-CIO, v. Servel, Inc., 7 Cir., 268 F. 2d 692 (pension, insurance and wage claims); Silverton v. Valley Transit Cement Co., 9 Cir., 249 F.2d 409 (wages); United Steelworkers of America v. Pullman-Standard Car Mfg. Co., 3 Cir., 241 F.2d 547 (pension payments). But where the claimed benefit runs to the union as an entity, jurisdiction under § 301 will lie. Council of Western Elec. Technical Employees-National v. Western Elec. Co., 2 Cir., 238 F.2d 892, 895; Local 205, United Electrical Radio and Mach. Workers, etc. v. General Elec. Co., 1 Cir., 233 F.2d 85, 100-101, affirmed 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028; United Const. Workers, etc. v. Electro Chemical Engraving Co., D.C.S.D.N.Y., 175 F.Supp. 54. The case of Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972 does not change this aspect of Westinghouse. There, it was held that Federal courts have jurisdiction under § 301 of suits by unions to compel arbitration pursuant to a collective bargaining agreement. The rights to arbitration stem from the collective contract and run directly to the union. Here, the alleged right of the employee to have his breach of the individual contract adjudicated by means other than arbitration is uniquely personal. It follows, therefore, that if the union is barred by § 301 from suing to enforce personal rights of employees, the individual employee is similarly barred. The plain language of the statute testifies to its applicability only to suits and contracts between employers and unions. See Copra v. Suro, 1 Cir., 236 F.2d 107, 113. Section 301 confers no right on an individual to sue, Adams v. International Brotherhood of Boilermakers, 10 Cir., 262 F.2d 835; Holman v. Industrial Stamping & Mfg. Co., D.C.E.D.Mich., 142 F.Supp. 215; Disanti v. Local 53, etc., Federation of Glass, etc., Workers, D.C.W.D.Pa., 126 F.Supp. 747, or be sued. Morgan Drive Away, Inc. v. International" }, { "docid": "6007536", "title": "", "text": "arbitrable and enjoining the Union from proceeding to arbitration. The Union appealed to this Court. Arbitration of labor disputes is a matter of contract, not a matter of right. United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 317 F.2d 214 (5th Cir. 1963). Determination of the arbitrability of this dispute therefore depends upon whether the collective agreement between the Company and the Union requires arbitration. In deciding this question, the permissible scope of the judicial inquiry is narrowly circumscribed by the Steelworkers’ trilogy. United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See also Lodge No. 12, District No. 37, International Association of Machinists v. Cameron Iron Works, Inc., 292 F.2d 112 (5th Cir. 1961). We are precluded from “weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim,” United Steelworkers of America v. American Manufacturing Co., supra, 363 U.S. at 568, 80 S.Ct., at 1346, such questions being for the arbitrator alone to decide. Our examination is solely “confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract”, United Steelworkers of America v. American Manufacturing Co., supra, and whether the parties “did agree to arbitrate the grievance * * United Steelworkers of America v. Warrior and Gulf Navigation Company, supra, 363 U.S. at 582, 80 S.Ct., at 1353. Having made this ‘limited inquiry, we conclude that this is a contractual dispute which the parties agreed to submit to arbitration. Compulsory retirement of employees upon attainment of a certain" }, { "docid": "5730799", "title": "", "text": "While it is true that a party may be estopped from invoking a remedy if it has already employed another inconsistent remedy, it would appear to the Court that Gebhardt could not be found guilty of such action. In state court he is seeking severance pay; in the arbitration proceeding, the union is asking that Gebhardt be reinstated in his former position. Although these remedies do not appear inconsistent to the Court, it is really a question which the Court does not have to decide, because, like the question of timely filing, it is a procedural matter that must be left to the decision of the arbitrator. In International Union of Operating Engineers v. Flair Builders, 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972), the reluctant party to arbitration claimed that the equitable defense of laches prevented the Court from ordering arbitration in that case. Although laches was an equitable defense— one arising outside of the specific terms of the collective bargaining agreement — the Court held that it was subject to arbitration. Similarly, in this case, the waiver defense is a procedural defense, though equitable in nature, which is to be raised at arbitration. It cannot prevent arbitration, for if the Court was to resolve the waiver issue it would be necessary to address the merits of the case which is beyond the Court’s role in a Setítion 301 suit. Controlled Sanitation Corporation v. District 128 of the International Association of Ma chinists & Aerospace Workers, 524 F.2d 1324 (3rd Cir. 1975). See also Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local No. 295 v. Servomation Corporation, 402 F.Supp. 1058 (M.D.Pa.1975); Office & Professional Employees International Union v. Allied Industrial Workers International Union, 397 F.Supp. 688 (E.D.Wis.1975); Transit Union v. Greyhound Lines, 77 LRRM 2238 (D.Mass.1971). The final defense that the defendant raises to arbitration is that he claims that by accepting severance pay the grievant has waived his right to arbitration. This is similar to the last discussed defense and demands the same response. Such a defense may be properly presented in an" }, { "docid": "7309615", "title": "", "text": "denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” In Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America, v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, the Court found that there was no express no-strike clause in the bargaining agreement but nevertheless determined that the union had bargained away its right to strike upon the basis that it had bargained to resolve the dispute by binding arbitration. The Court states: “The collective bargaining contract expressly imposed upon both parties the duty of submitting the dispute in question to final and binding arbitration. In a consistent course of decisions the Courts of Appeals of at least five Federal Circuits have held that a strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement. The National Labor Relations Board has reached the same conclusion. W. L. Mead, Inc., 113 N.L.R.B. 1040. We approve that doctrine. To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbi-tral process as a substitute for economic warfare.” 369 U.S. 95, 105, 82 S.Ct. 571, 577, 7 L.Ed.2d 593. See also Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199; Northwest Airlines, Inc. v. Air Line Pilots Ass’n, 8 Cir., 442 F.2d 246, 249; Lodge 1327, International Association of Machinists & Aerospace Workers v. Fraser & Johnston Co., 9 Cir., 454 F.2d 88 (1971). The Board in our present case relied upon the picket line clause and the bargaining history with respect thereto to support its conclusion that the no-strike, no-lockout clause did not cover the present controversy. The bargaining history has heretofore been set out. The picket line clause ultimately agreed upon was inserted in the contract" } ]

[ { "docid": "2028152", "title": "", "text": "the regulations promulgated under the Act, from instituting a civil action or pursuing any other remedies authorized under federal, state, or local law. 29 U.S.C. § 816(l). Appellants argue that the savings clause is unambiguous and clearly authorized § 1983 actions. In Uniformed Firefighters, 676 F.2d at 23, the Second Circuit rejected appellants’ interpretation, stating briefly that in Sea Clammers, 453 U.S. at 20-21 n. 31, 101 S.Ct. at 2626-27 n. 31, the Supreme Court had held that a very similar savings clause in the Clean Water Act, 33 U.S.C.A. § 1365(e), did not preserve § 1983 actions based on violations of the Clean Water Act itself. One decision of this Court has interpreted the CETA savings clause. See Black v. Broward Co. Emp. and Training Admin., 846 F.2d 1311, 1313-14 (11th Cir.1988) (pursuing remedies in CETA administrative procedures did not toll statute of limitations for Title YII claim). The Court in Black divided the universe of potential suits into “CETA based” claims (i.e., failure by a grantee to follow a CETA regulation), and “non-CETA based” claims (i.e., Title YII or federal constitutional claims arising out of CETA employment). It held that a Title VII claimant’s cause of action was not tolled during the time she pursued her CETA administrative remedies and stated, “When the action is based upon the federal Constitution or a federal statute other than CETA, as in this case, it is plain that there is no exhaustion,” because the savings clause authorized an immediate suit. Id. at 1313-14. The Court in Black noted that Uniformed Firefighters, 676 F.2d at 23, seemed to support such an interpretation, because after holding no § 1983 cause of action was authorized by the savings clause, the Second Circuit did go on to address the merits of the non-CETA equal protection claims presented. See also International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 806, 812, 93 L.Ed.2d 883 (1987) (actions against a polluter based on the state law of the location of the polluter are authorized by the savings clause of the Clean Water Act). The Court in Black" } ]

[ { "docid": "7778709", "title": "", "text": "of substantial weight. See, e. g., Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979); Red Lion Broadcasting Co. v. FCC, supra. My brothers, in concluding that the mandates of the third Cort factor are not fulfilled, rely on an analysis contained in CETA Workers’ Org. Comm. v. City of New York, 617 F.2d 926 (1980). Such reliance is misplaced because CETA is readily distinguishable. The statutory presumption in favor of administrative enforcement is much more potent under the Comprehensive Employment and Training Act (“CETA”) than it is under the Rehabilitation Act. Section 106 provides, in great detail, a sophisticated scheme for enforcement of CETA. In particular, the Secretary of Labor is required to reach a final determination on a complaint within 120 days. CETA § 106(b), 29 U.S.C. § 816(b). This complex enforcement mechanism suggests the “primacy” and “exclusivity” of the administrative grievance procedures. CETA Workers’ Org. Comm. v. New York, supra, 617 F.2d at 931. No such detailed machinery exists under the Rehabilitation Act, and even the accompanying Regulations contain no deadlines for the processing of complaints. 41 C.F.R. § 60-741.26(e) (1980) (“The Department of Labor shall institute a prompt investigation of each complaint . . . ”). Surely, it does not require straining the legislative interpretation to envision a private right of action complementing the statutory enforcement mechanism for § 503. Indeed, the Department of Labor endorses this view. I submit that analysis of the third Cort factor differs for the two statutes. More importantly, it indicates that Congress would be more inclined to create a private right of action for a statute where provisions for administrative enforcement are not detailed and precise. But the majority, admitting that the CETA scheme is more fully developed, still finds the distinctions between the two of little significance even in light of the Department of Labor’s statement that an implied right of action for § 503 violations should be permitted. The majority, it appears, attaches greater weight to tangential exempla than to direct, explicit evidence. My brothers do not contend that the requirements of the fourth" }, { "docid": "2028153", "title": "", "text": "based” claims (i.e., Title YII or federal constitutional claims arising out of CETA employment). It held that a Title VII claimant’s cause of action was not tolled during the time she pursued her CETA administrative remedies and stated, “When the action is based upon the federal Constitution or a federal statute other than CETA, as in this case, it is plain that there is no exhaustion,” because the savings clause authorized an immediate suit. Id. at 1313-14. The Court in Black noted that Uniformed Firefighters, 676 F.2d at 23, seemed to support such an interpretation, because after holding no § 1983 cause of action was authorized by the savings clause, the Second Circuit did go on to address the merits of the non-CETA equal protection claims presented. See also International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 806, 812, 93 L.Ed.2d 883 (1987) (actions against a polluter based on the state law of the location of the polluter are authorized by the savings clause of the Clean Water Act). The Court in Black provides a solid rationale for accepting the Second Circuit’s rejection of a § 1983 cause of action based solely on a violation of CETA or regulations promulgated thereunder. Therefore, we hold that appellants’ § 1983 claims based on the federal constitutional right to due process are authorized by the savings clause, while their purely CETA based claims are not. B. Merits of Due Process Claims The Fourteenth Amendment provides no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amendment XIV, § 2. In appellants’ case, the process employed by the Consortium was faulty and inadequate; therefore, appellants’ constitutional claim rises or falls on the existence of a property right in CETA employment. This Court has previously held that “[njeither CETA nor its regulations required a showing of good cause before a CETA participant-employee could be terminated.” Fonville v. Donovan, 740 F.2d 917, 919 (11th Cir.1984). As employees subject to discharge at will, CETA participants had no property interest in their jobs. See Blanton v. Griel, 758" }, { "docid": "2028148", "title": "", "text": "Action Under § 1983 The Supreme Court held in Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980), that state actors could be sued under § 1983 for violating rights granted by federal statutes. However, subsequent decisions have limited the right to sue when the federal statute in question is part of a comprehensive enforcement scheme which does not preserve causes of action outside the statutory framework. See Middlesex Co. Sewerage Auth. v. National Sea Clammers, Inc., 453 U.S. 1, 19-21, 101 S.Ct. 2615, 2625-27, 69 L.Ed.2d 435 (1981) (cause of action against polluters based on § 1983 barred by the scheme of redress provided by the Clean Water Act); Smith v. Robinson, 468 U.S. 992, 1009-12, 104 S.Ct. 3457, 3466-69, 84 L.Ed.2d 746 (1982) (action under § 1983 precluded by administrative scheme in Education of the Handicapped Act). Following Sea Clammers, the Second Circuit held that the grievance procedures established by CETA were “comprehensive” and precluded § 1983 causes of action. Uniformed Firefighters Ass’n v. City of New York, 676 F.2d 20, 22 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). Uniformed Firefighters is on point and is persuasive. It relies on an earlier Second Circuit opinion which, after analyzing the legislative history, described the CETA remedial scheme as follows: The totality of [CETA’s] provisions, comprehensive and well-crafted to the Act’s administrative, institutional, and political experiences, affirms the primacy and suggests the exclusivity of the grievance procedures, at least in cases seeking re dress against a prime sponsor or other recipient of funds. CETA Organizing Comm. v. City of New York, 617 F.2d 926, 930-31 (2d Cir.1980). CETA, and the regulations implementing it, gave a recipient the opportunity to complain of a CETA employer’s actions to its prime sponsor, to the DOL, and, failing all, to a federal appellate court. The experiences of both Davis and Maddox illustrate the potential for remediation within the CETA statutory framework. Although Davis was uninformed of her rights and ignored by the Consortium, she was able to obtain a favorable determination" }, { "docid": "2565507", "title": "", "text": "the event of any dispute as to the nature of the rights to which they are entitled as a result of civil service status. Cf. Chance v. Board of Examiners, 561 F.2d 1079 (2d Cir. 1977). CETA For purposes of considering appellees’ claim under CETA, we will assume that Maine v. Thiboutot, supra, authorizes a private cause of action under § 1983 to remedy state action denials of rights under CETA, despite our previous decision in CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926 (2d Cir. 1980), rejecting a private right of action implied directly by CETA. And we need not pause to consider whether, even under Thiboutot, a litigant suing under § 1983 to enforce obligations imposed by some other federal statute may be obliged to exhaust administrative remedies created by that other statute. In any event, appellees’ CETA claim fails on its merits. The CETA claim, upheld by the District Court, is that the City’s maintenance of the civil service examination, as applied to the members of the Housing Police, constitutes an “artificial barrier to public employment” within the meaning of 29 U.S.C. § 824(f) (Supp. II 1978). We disagree. CETA defines “artificial barriers to employment” to mean “limitations in the hiring ... and other terms and conditions of employment which are not directly related to an individual’s fitness or ability to perform the duties required by the employment position.” 29 U.S.C. § 802(3) (Supp. II 1978). As with the Title VII claim, there is no contention that the entry-level police exam is not directly related to the individual’s fitness or ability to perform the duties of police officer. Cf. DeLarmi v. Borough of Fort Lee, 132 N.J.Super. 501, 334 A.2d 349 (App.Div.1975) (rejecting similar challenge to civil service test under predecessor statute to CETA, Emergency Employment Act of 1971, 42 U.S.C. § 4876(c)(18)). The District Court found the test, even if job-related, to be an artificial barrier because of Section 6 of the City Charter, which the Court construed to dispense with civil service testing for the Housing Police members applying to the" }, { "docid": "15912701", "title": "", "text": "the recipient level procedure. 20 C.F.R. § 676.85. Within 120 days of receiving the complaint, the Grant Officer must issue a final determination. The Grant Officer’s final determination may be subject to review by requesting a hearing with the Chief Administrative Law Judge, United States Department of Labor. 20 C.F.R. § 676.88(f). The decision of the administrative law judge constitutes final action by the Secretary unless a party files exceptions within the time prescribed. 20 C.F.R. § 676.92(f). The final action of the Secretary is reviewable in the federal court of appeals for the circuit in which the prime sponsor or recipient resides or transacts business. 29 U.S.C. § 817. The principal claim in the complaint is that the prime sponsor, the Right to Employment Administration, has not acted within the time frames specified in section 676.83 nor has it complied with the procedures established in section 676.83. CETA provides a comprehensive administrative procedure for determination of complaints, under which the Secretary is authorized to correct violations of the Act, § 106, 29 U.S.C. § 816, subject to judicial review, § 107, 29 U.S.C. § 817. CETA Workers’s Organizing Committee v. City of New York, 617 F.2d 926, (2nd Cir.1980). Congress intended judicial review to occur in the court of appeals after the Secretary’s action upon the grievance, as the exclusive judicial method of monitoring the federal agency’s own enforcement of the Act vis-a-vis the prime sponsors or subrecipients. Id. at 935-36. CETA does not expressly or impliedly authorized private right of action against prime sponsors and other recipients of federal funds to be brought by individual program participants. Id. at 926. All of the issues raised by plaintiff’s complaint, including their assertion of denial of procedural due process, can be raised on the proceedings before the United States Department of Labor. 20 C.F.R. § 676.85(b). Cf. Chicago Automobile Trade Association v. Madden, 328 F.2d 766 (7th Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). [Mjerely raising a constitutional issue as to Board procedures in its complaint for declaratory judgment [temporary restraining order, preliminary injuctive" }, { "docid": "15912702", "title": "", "text": "816, subject to judicial review, § 107, 29 U.S.C. § 817. CETA Workers’s Organizing Committee v. City of New York, 617 F.2d 926, (2nd Cir.1980). Congress intended judicial review to occur in the court of appeals after the Secretary’s action upon the grievance, as the exclusive judicial method of monitoring the federal agency’s own enforcement of the Act vis-a-vis the prime sponsors or subrecipients. Id. at 935-36. CETA does not expressly or impliedly authorized private right of action against prime sponsors and other recipients of federal funds to be brought by individual program participants. Id. at 926. All of the issues raised by plaintiff’s complaint, including their assertion of denial of procedural due process, can be raised on the proceedings before the United States Department of Labor. 20 C.F.R. § 676.85(b). Cf. Chicago Automobile Trade Association v. Madden, 328 F.2d 766 (7th Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). [Mjerely raising a constitutional issue as to Board procedures in its complaint for declaratory judgment [temporary restraining order, preliminary injuctive relief], when full appellate review of the administrative proceedings is available and in the absence of extenuating circumstances, is insufficient to give the district court jurisdiction over the subject matter in the face of the well-established doctrine of exhaustion of administrative remedies. Vapor Blast Manufacturing Company v. Madden, 280 F.2d 205, 209 (7th Cir.), cert. denied, 364 U.S. 910, 81 S.Ct. 273, 5 L.Ed. 2d 225 (1960). Requiring exhaustion is particularly appropriate when the administrative remedy may eliminate the necessity to decide constitutional questions. See Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 772-73, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947); Chicago Automobile Trade Association v. Madden, supra; Montana Chapter of Ass’n of Civilian Technician, Inc. v. Young, 514 F.2d 1165, 1167-68 (9th Cir.1975). The principle which requires administrative finality as a prerequisite to judicial review has particular force where the interlocutory order sought to be reviewed relates to the agency’s case-handling procedures. Chicago Automobile Trade Association v. Madden, supra, at 769, citing, United Air Lines v. Civil Aeronautics Board, 228 F.2d" }, { "docid": "7778691", "title": "", "text": "prior congressional intent.” Simpson v. Reynolds Metals Co., 629 F.2d at 1243. Given the somewhat ambiguous legislative history, however, we must proceed to the third question under Cort v. Ash: whether it is consistent with the underlying purposes of the legislative scheme to infer a private right of action for the handicapped person discriminated against by his employer. Here we note, as did the Rogers majority, 611 F.2d at 1084, that Congress provided a rather complete administrative scheme to remedy section 503 violations and that the implementing regulations, 41 C.F.R. §§ 60-741.4 to 60-741.54 (1980), emphasize resolving complaints to the Department of Labor “by informal means, including conciliation, and persuasion, whenever possible,” id. § 60-741.28(a). The regulations provide as remedies withholding of progress payments, termination of existing contracts, or debarment from receiving future contracts, id. § 60-741.28(c) to (e), rather than remedies running to the discriminated-against employee. In this regard, the administrative procedures established by the Act and implementing regulations are remarkably consistent with those under the Comprehensive Employment and Training Act (CETA) discussed in CETA Workers’ Organizing Committee v. New York, 617 F.2d 926 (2d Cir. 1980). Although the scheme for implementation of the CETA provided in CETA § 106, 29 U.S.C. § 816, may be somewhat more sophisticated than that provided for by section 503 of the Rehabilitation Act— the Rehabilitation Act regulations contain no deadlines for the processing of complaints, 41 C.F.R. § 60-741.26(e) (1980) — we cannot find this distinction between the cases very significant. Rather, as in CETA Workers, 617 F.2d at 933-34, we believe that the underlying congressional purpose was to provide an administrative procedure for the determination of complaints under which the administering agency was to use its powers to enforce the section in question. See Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, -U.S.-,-, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981); Transamerica Mortgage Advisors, 444 U.S. at 19, 100 S.Ct. at 247. And though the Rehabilitation Act failed directly to provide for judicial review of such an administrative procedure, the Department of Labor evidently thought that such review might be" }, { "docid": "9716825", "title": "", "text": "as an Exclusive Remedy On cross-appeal, the University asserts that the CETA grievance procedure that Page used constituted her exclusive remedy, and that the district court should have dismissed Page’s section 1983 suit on that ground. In support the University cites Uniformed Firefighters Ass’n v. City of New York, in which the Second Circuit held that CETA procedures are the exclusive remedy for a violation of CETA itself. 676 F.2d 20, 22-23 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). The Uniformed Firefighters plaintiffs brought a section 1983 suit based on alleged violations of both CETA and the Equal Protection Clause. The circuit court held that the CETA violation had to be addressed by CETA grievance procedures, but went on to address the merits of the alleged Equal Protection Clause violation. Id. at 23. Uniformed Firefighters, therefore, stands for the proposition that CETA does not provide the exclusive remedy for constitutional violations. Similarly, this Court has held that the same set of facts can give rise to both a cause of action under the Education for All Handicapped Children Act and a section 1983 constitutional claim. Espino v. Besteiro, 708 F.2d 1002, 1007-10 (5th Cir.1983). Since Page’s section 1983 suit alleges a violation of the Due Process Clause, rather than CETA violations, CETA does not limit her relief. III. CONCLUSION Page’s filings met the minimum requirements for a timely notice of appeal. The district court did not err in dismissing Page’s first amendment claim for failure to allege with specificity that Page’s speech touched on matters of public concern. Nor did the district court err in dismissing the remaining claims against the President and Regents of the University. Page’s allegations that DeLaune, Turner and Bradley denied her due process, however, do raise genuine questions of material fact that require remand. CETA does not provide the exclusive remedy for Page’s constitutional claims. For all of these reasons, the district court’s judgment is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED." }, { "docid": "2028149", "title": "", "text": "York, 676 F.2d 20, 22 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). Uniformed Firefighters is on point and is persuasive. It relies on an earlier Second Circuit opinion which, after analyzing the legislative history, described the CETA remedial scheme as follows: The totality of [CETA’s] provisions, comprehensive and well-crafted to the Act’s administrative, institutional, and political experiences, affirms the primacy and suggests the exclusivity of the grievance procedures, at least in cases seeking re dress against a prime sponsor or other recipient of funds. CETA Organizing Comm. v. City of New York, 617 F.2d 926, 930-31 (2d Cir.1980). CETA, and the regulations implementing it, gave a recipient the opportunity to complain of a CETA employer’s actions to its prime sponsor, to the DOL, and, failing all, to a federal appellate court. The experiences of both Davis and Maddox illustrate the potential for remediation within the CETA statutory framework. Although Davis was uninformed of her rights and ignored by the Consortium, she was able to obtain a favorable determination by the DOL, the next level in the review process. Maddox went through the local grievance process and through the DOL until finally choosing to bring a § 1983 action rather than appeal under 29 U.S.C. § 817(a). However, the Supreme Court has held that resort to § 1983 is not to be foreclosed lightly. In Wright v. Roanoke, 479 U.S. 418, 107 S.Ct. 766, 771-73, 93 L.Ed.2d 781 (1987), the Court held that a § 1983 action could be brought against local housing authorities for their violation of the Federal Housing Act. Like CETA, the Federal Housing Act requires local authorities to establish grievance procedures. However, the Housing Act provides no administrative mechanism whereby individuals can enforce those regulations against the local authorities. The Supreme Court analyzed the role of the Department of Housing and Urban Development (“HUD”) in enforcing the Housing Act: HUD itself has never provided a procedure by which tenants could complain to it about alleged failures of [local authorities] to abide by their annual contribution contracts, the Brooke Amendment or" }, { "docid": "9716824", "title": "", "text": "F.2d 1264 (5th Cir.1976). Thurston was vacated on other grounds by the Supreme Court, but the holding on due process rights was reaffirmed by this Court on remand. 578 F.2d 1167 (5th Cir.1978). Since Page asserts that she received no notice or opportunity to be heard, we are not here confronted with the more difficult questions of how much notice and opportunity are required. The minimal requirement of some notice was “clearly established” by 1982 and has been reiterated many times since. DeLaune, Turner, and Bradley cannot, therefore, appeal to qualified immunity. The district court erred in granting summary judgment to DeLaune, Turner, and Bradley on Page’s due process claim. Page has pointed to no evidence in the record linking the president or regents of the University to the denial of pretermination due process. The delay of a few months in paying Page the damages awarded by the University hearing officer does not violate a clearly established right. We therefore affirm the district court’s grant of summary judgment to the president and regents. D. CETA as an Exclusive Remedy On cross-appeal, the University asserts that the CETA grievance procedure that Page used constituted her exclusive remedy, and that the district court should have dismissed Page’s section 1983 suit on that ground. In support the University cites Uniformed Firefighters Ass’n v. City of New York, in which the Second Circuit held that CETA procedures are the exclusive remedy for a violation of CETA itself. 676 F.2d 20, 22-23 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). The Uniformed Firefighters plaintiffs brought a section 1983 suit based on alleged violations of both CETA and the Equal Protection Clause. The circuit court held that the CETA violation had to be addressed by CETA grievance procedures, but went on to address the merits of the alleged Equal Protection Clause violation. Id. at 23. Uniformed Firefighters, therefore, stands for the proposition that CETA does not provide the exclusive remedy for constitutional violations. Similarly, this Court has held that the same set of facts can give rise to both a" }, { "docid": "241725", "title": "", "text": "prescribed administrative remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938)). The Court has also ruled that where Congress has enacted a specific statutory scheme for obtaining review, “the doctrine of exhaustion of administrative remedies ... requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness.” Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965). Additionally, the Second Circuit has held that the review procedure available under CETA was “exclusive as to claims grounded upon a prime sponsor’s ... illegal actions.” CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926, 936 (2d Cir. 1980). In light of the applicable precedent, we conclude that the Secretary was substantially justified in contending Ms. Blitz was obligated to exhaust her administrative remedies before seeking judicial relief. Appellee argues, however, that the exhaustion doctrine does not apply to cases presenting constitutional challenges to a regulatory or statutory provision. The district court found Ms. Blitz’s constitutional challenges sufficient both to exempt her from pursuing administrative remedies and to conclude the Secretary’s reliance on the exhaustion doctrine lacked substantial justification. Blitz v. Donovan, 538 F.Supp. 1119, 1124-25 (D.D.C.1982), vacated, 459 U.S. 1095, 103 S.Ct. 711, 74 L.Ed.2d 943 (1983); Blitz v. Donovan, No. 82-0706 at 4 (Aug. 29, 1983), J.A. at 39, 42. The Secretary, however, did not contend that the presence of constitutional challenges is irrelevant to the application of the exhaustion doctrine. Rather, he argued that constitutional challenges do not exempt a litigant from exhausting available administrative remedies when pursuit of those remedies may avert the need for constitutional adjudication. The Secretary noted that Ms. Blitz’s pursuit of administrative remedies would have allowed him to construe section 514 to penalize only inciteful advocacy. Defendant’s Motion to Dismiss at 23-25. Had appellee obtained admission into the" }, { "docid": "22785574", "title": "", "text": "days of receiving complaint does not bar later suit). The Administrative Procedure Act (APA), 5 U. S. C. §§701-706, entitles any person “adversely affected or aggrieved by agency action” to judicial review, § 702, unless the relevant statute precludes judicial review or “agency action is committed to agency discretion by law,” § 701(a)(2). Clearly the statutory command that the Secretary “shall” act within 120 days does not commit such action to the Secretary’s discretion. Moreover, nothing in CETA appears to bar an action to enforce the 120-day deadline. Cf. CETA Workers Organizing Comm. v. City of New York, 617 F. 2d 926, 934-936 (CA2 1980) (APA may not be used to circumvent § 106(b) complaint mechanism). Thus, it would appear that a complainant adversely affected by the Secretary’s failure to act on a complaint could bring an action in the district court. The court would have the authority to “compel agency action unlawfully withheld or unreasonably delayed,” § 706(1). If respondent is correct in arguing that Congress, in enacting § 106(b), intended to protect grant recipients from lengthy delays in audits, grant recipients such as respondent would be within the zone of interests protected by § 106(b), and would therefore have standing to bring an action under the APA to the same extent as a complainant. Cf. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). On the other hand, were § 106(b) intended only to protect complainants, there would be no need to provide grant recipients with any remedy at all — much less the drastic remedy respondent seeks in this case — for the Secretary’s failure to meet the 120-day deadline. See Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v. City of New York, 676 F. 2d 20 (CA2 1982); Kolman v. Milwaukee Area Technical College, 548 F. Supp. 684 (ED Wis. 1982). We need not, and do not, hold that a statutory deadline for agency action can never bar later action unless that consequence is stated explicitly in the statute. In this case, we need not go beyond the normal indicia" }, { "docid": "1873089", "title": "", "text": "Federal Appellees at 24, we find that there is a special class of people to whom the Act addresses itself, namely selected individuals who are “economically disadvantaged, unemployed, or underemployed persons,” CETA § 2, 29 U.S.C. § 801. . Although we find here that CETA’s provision of a comprehensive administrative procedure subject to judicial review appears to indicate congressional intent against a private right of action, we do not mean to say that, any time a statute contains administrative remedies, Congress has precluded all private rights of action. Among the factors requiring analysis is whether the administrative remedies provide relief for the specific claims of the plaintiff. As the Court noted in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979): The fact that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section . . . Rather, the Court has generally avoided this type of “exclusion into extrapolation of legislative intent,” Cort v. Ash, supra, 422 U.S., at 82 n. 14, [95 S.Ct., at 2090 n. 14], unless there is other, more convincing, evidence that Congress meant to exclude the remedy. See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, supra, 414 U.S., at 458-461 [, 94 S.Ct., at 693-694]. . Appellants cite Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), but this was a case involving a constitutional attack on a New York welfare statute, and therefore is obviously not on point. Furthermore, in Rosado the petitioners could not have obtained an administrative ruling satisfying their claim in any event, since the federal agency involved did not permit petitioners to participate in a review of the State’s program. Id. at 405-07, 90 S.Ct. at 1214-15. Our own recent Hark v. Dragon, 611 F.2d 11 (2d Cir. 1979) (where CETA participants attacked a Vermont state policy limiting CETA participation to one year), is also not to the contrary. There, exhaustion of administrative remedies would have been" }, { "docid": "2028147", "title": "", "text": "because the present § 1983 action was pending in district court. Charles Maddox was employed as a CETA participant by the Hollinger’s Island Patrol, a community watch group. He was terminated and, unlike Davis, filed a proper grievance with the Consortium. Maddox initially was denied relief by a Consortium “Training Specialist,” but eventually the Consortium Grievance Committee found in his favor for the sum of $539.07 (medical benefits he would have received plus lost wages). Maddox, who had found unsubsidized employment quickly but had quit due to an injury, appealed the decision to the DOL because he disagreed with the damage calculation. The DOL affirmed as to liability, but reduced the damage award. Maddox failed to appeal this decision to the Court of Appeals as was his statutory right, 29 U.S.C.A. § 817(a), choosing instead to file the present action. Davis and Maddox claim that CETA and the due process clause of the Fourteenth Amendment, enforceable through § 1983, provide them with remedies for their discharge by the Consortium’s sub-grantees. II. DISCUSSION A. Cause of Action Under § 1983 The Supreme Court held in Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980), that state actors could be sued under § 1983 for violating rights granted by federal statutes. However, subsequent decisions have limited the right to sue when the federal statute in question is part of a comprehensive enforcement scheme which does not preserve causes of action outside the statutory framework. See Middlesex Co. Sewerage Auth. v. National Sea Clammers, Inc., 453 U.S. 1, 19-21, 101 S.Ct. 2615, 2625-27, 69 L.Ed.2d 435 (1981) (cause of action against polluters based on § 1983 barred by the scheme of redress provided by the Clean Water Act); Smith v. Robinson, 468 U.S. 992, 1009-12, 104 S.Ct. 3457, 3466-69, 84 L.Ed.2d 746 (1982) (action under § 1983 precluded by administrative scheme in Education of the Handicapped Act). Following Sea Clammers, the Second Circuit held that the grievance procedures established by CETA were “comprehensive” and precluded § 1983 causes of action. Uniformed Firefighters Ass’n v. City of New" }, { "docid": "2052451", "title": "", "text": "properly dismissed the action, because if such dismissal was appropriate, it would be unnecessary for us to reach the Church’s other claims. See, e.g., Dempsey v. Guaranty Trust Co., 131 F.2d 103 (7th Cir. 1942), cert. denied, 318 U.S. 769, 63 S.Ct. 761, 87 L.Ed. 1139 (1943). II. The district court granted the defendants’ motion to dismiss on the ground that the Church was required to exhaust its administrative remedies under state law — i.e., go through the Commission’s reverter proceeding — before resorting to federal court under section 1983. The court relied on Rosenthal v. Bagley, 581 F.2d 1258 (7th Cir. 1978), and Adams v. Chicago, 491 F.Supp. 1257 (N.D. Ill. 1980). Rosenthal, however, was a proceeding before a federal agency, the CFTC, and recourse to the district court was not premised on a 1983 theory. The case therefore reflects concerns entirely different from those apposite to the instant case. Similarly in Adams, although one of the grounds of the plaintiffs’ action was section 1983, the case was based on the City’s alleged violation of CETA provisions, and therefore the plaintiffs had immediate recourse to a federal agency remedy. Because a party before a federal agency has immediate recourse to federal relief, it is not subject to the potential violations of its rights by persons acting under color of state law which was the concern which sparked the enactment of section 1983, and imposition of an exhaustion requirement is appropriate. Federal agency proceedings are therefore governed by a strict exhaustion requirement that is simply inapplicable to state administrative proceedings. See Hart & Wechsler, The Federal Courts and the Federal System 985 (2d ed. 1973). Since the District Court ruled in the instant case, the Supreme Court has issued its most comprehensive opinion to date on the exhaustion requirement in nonprisoner section 1983 cases, Patsy v. Board of Regents, - U.S. -, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). In a thorough analysis the Court held that exhaustion of state administrative remedies is not a prerequisite to bringing an action under section 1983. In Patsy, the plaintiff brought a 1983" }, { "docid": "7778708", "title": "", "text": "legislative history clearly indicates that Congress, in passing the attorney’s fees amendments of 1978, assumed that a private right of action was created with the passage of § 503 in 1973. This assumption does not reflect a subsequent desire to amend the original enactment; rather, it illuminates the initial intent of the draftsmen. The third factor of the Cort analysis considers whether a private right of action would support Congress’s purpose in enacting the statutory scheme. See Cort v. Ash, supra, 422 U.S. at 78, 95 S.Ct. at 2088. Implication of a private right of action is not inconsistent with the underlying purr pose of § 503 — effective administrative enforcement. The Department of Labor and its office of Federal Contract Compliance Programs, it is interesting to note, have stated that the existence of an implied remedy would enhance informal conciliation and administrative enforcement in general. See Chaplin v. Consol. Edison Co. of N. Y., Inc., 482 F.Supp. 1165, 1172 (S.D.N.Y.1980). Although the majority lightly dismisses these agency opinions, courts generally believe they are deserving of substantial weight. See, e. g., Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979); Red Lion Broadcasting Co. v. FCC, supra. My brothers, in concluding that the mandates of the third Cort factor are not fulfilled, rely on an analysis contained in CETA Workers’ Org. Comm. v. City of New York, 617 F.2d 926 (1980). Such reliance is misplaced because CETA is readily distinguishable. The statutory presumption in favor of administrative enforcement is much more potent under the Comprehensive Employment and Training Act (“CETA”) than it is under the Rehabilitation Act. Section 106 provides, in great detail, a sophisticated scheme for enforcement of CETA. In particular, the Secretary of Labor is required to reach a final determination on a complaint within 120 days. CETA § 106(b), 29 U.S.C. § 816(b). This complex enforcement mechanism suggests the “primacy” and “exclusivity” of the administrative grievance procedures. CETA Workers’ Org. Comm. v. New York, supra, 617 F.2d at 931. No such detailed machinery exists under the Rehabilitation Act, and even the accompanying Regulations" }, { "docid": "11312378", "title": "", "text": "measures” of the Food Stamp Act, 7 U.S.C. § 204 et seq.)] Hawaii Dep’t of Educ. v. Katherine D., 727 F.2d 809, 820 (9th Cir.1983) (noting the detailed administrative and judicial review provisions of the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq.), cert. denied, — U.S.-, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985); Powell v. Defore, 699 F.2d 1078 (11th Cir.1983) (same); Uniformed Firefighters Ass’n, Local 94 v. City of New York, 676 F.2d 20, 22-23 & n. 4 (2nd Cir.) (same for the Comprehensive Employment and Training Act, 29 U.S.C. § 801 et seq.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). The Housing Act, by contrast, does not expressly establish any administrative or judicial remedy for violations of the grievance procedure requirement. See Beck-ham v. New York City Housing Auth., 755 F.2d 1074, 1077 (2d Cir.1985) (concluding that tenants could enforce the Act’s rent calculation standards against local PHAs in a section 1983 action); cf. Howard v. Pierce, 738 F.2d 722, 729 (6th Cir.1984). Accordingly, the District cannot argue that section 1983 enforcement of that federal requirement will thwart any detailed and elaborate statutory enforcement scheme. Moreover, we are not prepared to conclude that HUD’s implicit ability to withhold federal funds when local PHAs violate federal law constitutes an enforcement mechanism sufficiently comprehensive to imply that Congress intended to foreclose section 1983 remedies. Cf. Cannon, 441 U.S. at 704-07, 99 S.Ct. at 1961-63 (concluding that the ability of plaintiffs to petition federal agencies to terminate federal funding for statutory violations does not imply congressional intent to preclude an implied right of action). Terminating federal funds is a drastic remedy, rarely imposed, that only serves to injure the intended beneficiaries. See id. at 704-05, 708 n. 42, 99 S.Ct. at 1963 n. 42. As other circuits have consistently recognized, the first Sea Clammers exception cannot be sensibly applied to preclude a section 1983 action on the basis of such an equivocal indication of congressional intent. See, e.g., Keaukaha, 739 F.2d at 1471; Lynch v. Dukakis, 719 F.2d 504, 510-11 (1st" }, { "docid": "241724", "title": "", "text": "at 21-25. The Secretary contended that a comprehensive grievance system providing ultimate access to the court of appeals constituted the exclusive means by which relief could be obtained against a prime sponsor for noncompliance with CETA. Id. at 21-22. See 29 U.S.C. §§ 816-817 (Supp. V 1981); 20 C.F.R. §§ 676.81-676.93 (1982). He then noted that appellee’s complaint effectively charged prime sponsor VEC with noncompliance with CETA nondiscrimination provisions and requested the Secretary to direct VEC to process appellee’s application without regard to her political beliefs. Complaint, paras. 1, 21, 28, 29, 30, Exhibit 1, Blitz v. Donovan, 538 F.Supp. 1119 (D.D.C.1982), vacated, 459 U.S. 1095, 103 S.Ct. 711, 74 L.Ed.2d 943 (1983). The Secretary accordingly asserted that appellee was required to proceed under the administrative remedial scheme and that the district court was without jurisdiction to rule on appellee’s petition. Defendant’s Motion to Dismiss at 21-22. The Secretary's jurisdictional argument has substantial precedential support. The Supreme Court has recognized that “no one is entitled to judicial relief for a supposed ... injury until the prescribed administrative remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938)). The Court has also ruled that where Congress has enacted a specific statutory scheme for obtaining review, “the doctrine of exhaustion of administrative remedies ... requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness.” Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965). Additionally, the Second Circuit has held that the review procedure available under CETA was “exclusive as to claims grounded upon a prime sponsor’s ... illegal actions.” CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926, 936 (2d Cir. 1980). In light of the applicable precedent, we conclude that the Secretary was substantially justified in contending Ms. Blitz was obligated to exhaust" }, { "docid": "2565506", "title": "", "text": "v. Waterman Steamship Corp., 373 U.S. 206, 215, 83 S.Ct. 1185, 1191, 10 L.Ed.2d 297 (1963); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2946 at 420 (1973). While we affirm the District Court’s ruling that the Housing Police members are entitled to civil service status, we think it is inappropriate for a federal court to attempt to determine the content of this state-created status. We therefore vacate all aspects of the District Court’s remedy other than the bare requirement of civil service status. It appears that most, if not all, of the other aspects of the Court’s remedy, including incorporation of the Housing Police members into the Police Department with equal pay and benefits, were designed to remedy the Title VII violation, which we have rejected. Upon remand, the District Court’s decree should be limited to requiring civil service status for the appellees. Once that entitlement has been adjudicated, the District Court should relinquish its jurisdiction (save only for any necessary compliance remedies) and remit appellees to the state courts in the event of any dispute as to the nature of the rights to which they are entitled as a result of civil service status. Cf. Chance v. Board of Examiners, 561 F.2d 1079 (2d Cir. 1977). CETA For purposes of considering appellees’ claim under CETA, we will assume that Maine v. Thiboutot, supra, authorizes a private cause of action under § 1983 to remedy state action denials of rights under CETA, despite our previous decision in CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926 (2d Cir. 1980), rejecting a private right of action implied directly by CETA. And we need not pause to consider whether, even under Thiboutot, a litigant suing under § 1983 to enforce obligations imposed by some other federal statute may be obliged to exhaust administrative remedies created by that other statute. In any event, appellees’ CETA claim fails on its merits. The CETA claim, upheld by the District Court, is that the City’s maintenance of the civil service examination, as applied to the members of the Housing" }, { "docid": "2028150", "title": "", "text": "by the DOL, the next level in the review process. Maddox went through the local grievance process and through the DOL until finally choosing to bring a § 1983 action rather than appeal under 29 U.S.C. § 817(a). However, the Supreme Court has held that resort to § 1983 is not to be foreclosed lightly. In Wright v. Roanoke, 479 U.S. 418, 107 S.Ct. 766, 771-73, 93 L.Ed.2d 781 (1987), the Court held that a § 1983 action could be brought against local housing authorities for their violation of the Federal Housing Act. Like CETA, the Federal Housing Act requires local authorities to establish grievance procedures. However, the Housing Act provides no administrative mechanism whereby individuals can enforce those regulations against the local authorities. The Supreme Court analyzed the role of the Department of Housing and Urban Development (“HUD”) in enforcing the Housing Act: HUD itself has never provided a procedure by which tenants could complain to it about alleged failures of [local authorities] to abide by their annual contribution contracts, the Brooke Amendment or HUD regulations; nor has it taken unto itself the task of reviewing [local] grievance procedure decisions. Id. 107 S.Ct. at 772. Tenants with grievances against local authorities cannot formally go to HUD with their complaints. CETA employees, on the other hand, had the right to pursue their grievances to the DOL and beyond. The Housing Act’s administrative remedial framework is significantly less comprehensive than CETA’s. See also Gonzalez v. Pingree, 821 F.2d 1526, 1529 (11th Cir.1987) (action under § 1983 permitted to enforce Food Stamp Act where no administrative procedure allowed complaints to be brought against local authorities). The remedial framework established by CETA evidences Congressional intent to foreclose resort to § 1983 for violations of CETA and regulations implementing it. Davis and Maddox argue that the savings clause contained in CETA explicitly preserved their § 1983 cause of action: The existence of remedies under the section shall not preclude any person, who alleges that an action of a prime sponsor or of any other recipient violates any of the provisions of the Act or" } ]

[ { "docid": "23453251", "title": "", "text": "require the defendants to sufficiently show that reasonable accommodations either could not be made or would pose an undue hardship on the employer. See Prewitt v. United States Postal Service, 662 F.2d at 307-09. The Supreme Court has held in a case decided under § 504 of the Act that an “otherwise qualified [handicapped] person is one who is able to meet all of a program’s requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). A plaintiff who could perform the essentials of the job if afforded reasonable accommodation would be entitled to relief. The necessity for providing reasonable accommodation is derived from the express language of § 501(b) requiring the federal government to undertake affirmative action on behalf of handicapped applicants and employees. See n. 1 supra. Although the plaintiff initially has the burden of coming forward with evidence to make at least a facial showing that his handicap can be accommodated, the federal employer has the ultimate burden of persuasion in showing an inability to accommodate. See 29 C.F.R. § 1613.704 (1982). The 1978 amendments to the Act expressly provide that district courts may consider the cost of any necessary workplace accommodation in fashioning remedies for violations of § 501. 29 U.S.C.A. § 794a(a)(l). One of the regulations promulgated to implement § 501, 29 C.F.R. § 1613.704, sets out the factors to be considered in determining whether an accommodation would impose an undue hardship on an agency’s operations. These include: (1) The overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation. 29 C.F.R. § 1613.704(c) (1982). The district court concluded that it would have been necessary for the Corps to require other park technicians to perform many of plaintiff’s duties had he been hired. Given that only two to four other workers are available at" } ]

[ { "docid": "9486557", "title": "", "text": "persons.” Id. (citing Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979)). More specifically, § 501 of the Rehabilitation Act imposes on federal agencies “an affirmative duty ‘to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion.’ ” Id. (quoting Ryan v. Federal Deposit Ins. Corp., 565 F.2d 762, 763 (D.C.Cir.1977)). The Rehabilitation Act, however, contains a caveat: the 1978 amendments expressly provide that the district courts may “take into account the reasonableness of the cost of any necessary work place accommodation” in fashioning remedies for violations of § 501. 29 U.S.C. § 794a(a)(l). The EEOC promulgated extensive regulations to guide federal employers in making reasonable accommodations for handicapped persons. (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited: (1) making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704 (1986). In cases in which a handicapped plaintiff sought but was denied a position with the federal government, courts have held that the initial burden is on the plaintiff to make a prima fade showing that reasonable accommodation of his handicap is possible. Once the plaintiff makes such a showing, the employer bears the burden of demonstrating inability to accommodate. Credible evidence that reasonable accommodation is not possible or would be unduly burdensome shifts the burden back to the plaintiff to rebut the employer’s evidence. See Gardner, 752 F.2d at 1280; Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir.1983); Prewitt, 662 F.2d at 308 (citing Note, Accommodating the Handicapped, 80 Colum.L.Rev. 171, 187-89 (1980)). The situation here is somewhat different. The" }, { "docid": "10953182", "title": "", "text": "requirements in spite of his handicap. Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). In a “surmountable barrier” discrimination claim, the employer has an obligation to provide reasonable accommodation for the handicapped individual. Prewitt, 662 F.2d at 307. The plaintiff must show that he is an “otherwise qualified handicapped individual.” The employer then has the burden of persuasion to show that a “reasonable accommodation” cannot be made. Prewitt, 662 F.2d at 308. Factors to be considerd in determining whether an accommodation would impose an undue hardship on the operation of the agency would include: “(1) [t]he overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation.” Prewitt, 662 F.2d at 308 (quoting EEOC regulation, 29 C.F.R. § 1613.704). The individual is not otherwise qualified unless any employment barrier is surmountable without substantial modification in the requirements of the position or undue administrative or financial burden on the federal agency. That determination cannot be made on this record; it must be made administratively before court review. Cf., Nelson v. Thornburgh, 567 F.Supp. 369 (E.D.Pa.1983) with Bey v. Bolger, 540 F.Supp. 910 (E.D.Pa.1982). The court is of the view that the OWCP, particularly its Division of Vocational Rehabilitation, should take an interest in this case; it has previously called to the attention of the USPS the fact that rehabilitation through reemployment can reduce the cost of compensation and benefit the injured worker. (Defendant’s Response filed June 14, 1982; Exhibit E). An administrative effort must be made to resolve the reemployment issues concerning Donald Mackay to avoid unnecessary compensation payments and for the sake of his own productivity; that administrative effort might include additional medical and psychiatric examinations to determine fitness for work as well as terms and conditions of his employment status. MSPB APPEAL It is stated in the Government submissions that Mackay petitioned the MSPB for" }, { "docid": "3512001", "title": "", "text": "the Court that this is the relief which is envisioned by that cause of actions pursued by plaintiff. The district court excluded the testimony of Mr. Weigert and Ms. McWhirter on similar grounds. II. DISCUSSION A. The 1810 Positions Mr. Fedro asks this court to determine as a matter of law whether the Rehabilitation Act and its implementing regulations impose upon employers a duty to find a new position for employees who are no longer able to perform the essential functions of their job due to a handicap. The district court held that it did not, and we agree. The Rehabilitation Act requires federal employers to make “affirmative efforts to overcome the disabilities caused by handicaps.” Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). Federal agencies are thus required to “give full consideration to hiring, placement, and advancement of qualified mentally and physically handicapped persons ...” 29 C.F.R. § 1613.703. In furtherance of that policy federal regulations require that: (a) An agency shall make reasonable accommodation to the known physical or mental limitation of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions_ 29 C.F.R. § 1613.704. (Emphasis added). Mr. Fedro contends that the Marshals Service was required as a matter of “reasonable accommodation” under § 1613.704(b) not only to place him in a different position (the 1810 position), but to modify its staffing policies to create a new position by “restructuring” two of its existing positions. It was not. When Mr. Fedro’s request for placement in a full-time 1810 position was denied, the law provided that “reasonable accommodation” generally did not include transfer or reassignment to a different position when" }, { "docid": "10953181", "title": "", "text": "neutral standards is implicated by Mackay’s complaints of discipline for unauthorized absences and safety rule violations. But an employer need not tolerate absence without leave at the discretion of the individual employee. If the leave is required for reasons of illness or handicap, that determination must be made by the administrative process of the Department of Labor and the decision is not subject to court review. 5 U.S.C. § 8128(b). Neither can Mackay ignore rules- for the safety of all workers, including himself, in order to accommodate his physical problems in the workplace. However, physical inability to comply with safety rules may be considered lack of fitness for work by the Department of Labor. It is quite possible there has been a breach of the duty to make reasonable accommodation to Mackay’s handicap in the workplace, that is, there may be surmountable impairment barriers. Section 504 prohibits “otherwise qualified” individuals from being discriminated against “solely by reason of his handicap.” An “otherwise qualified” person is one who is able to meet all of a program’s requirements in spite of his handicap. Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). In a “surmountable barrier” discrimination claim, the employer has an obligation to provide reasonable accommodation for the handicapped individual. Prewitt, 662 F.2d at 307. The plaintiff must show that he is an “otherwise qualified handicapped individual.” The employer then has the burden of persuasion to show that a “reasonable accommodation” cannot be made. Prewitt, 662 F.2d at 308. Factors to be considerd in determining whether an accommodation would impose an undue hardship on the operation of the agency would include: “(1) [t]he overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation.” Prewitt, 662 F.2d at 308 (quoting EEOC regulation, 29 C.F.R. § 1613.704). The individual is not otherwise qualified unless any employment barrier is surmountable" }, { "docid": "22062090", "title": "", "text": "proving that the physical criteria are job related. If the employer does this, then the burden of persuasion to show that he can satisfy these criteria rests on the handicapped applicant. 4. “Surmountable Barrier” Discrimination, or the Duty to Make Reasonable Accommodation Federal employers, including the postal service, are obliged by section 501(b) to provide reasonable accommodation for the handicapped. As the Davis Court pointed out, 442 U.S. at 410, 99 S.Ct. at 2369, section 501(b), unlike section 504, explicitly requires federal government em•ployers to undertake “affirmative action” on behalf of the handicapped. And the new section 505, added by Congress in 1978, explicitly permits courts to fashion “an equitable or affirmative action remedy” for violations of section 501, with the caveat that “the reasonableness of the cost of any necessary workplace accommodation” should be taken into account. The legislative intent reflected in the creation of a handicap discrimination private action clearly shows that federal government employers must make reasonable accommodation for handicapped job applicants. There is a dearth of decisional law on this issue. However, the EEOC administrative regulations, which, as noted above, aré entitled to deference, provide some basis for outlining the contours of the surmountable barrier accommodation duty. The relevant EEOC regulation, 29 C.F.R. § 1613.704, provides: (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) The overall size of the agency’s program with respect to the number of employees," }, { "docid": "2122699", "title": "", "text": "over the workplace and ability to maintain any standards. Such an argument runs counter to the general principle behind the ADA that imposes a duty on the employer to modify some work rules, facilities, terms, or conditions to enable a disabled person to work, and if MHRI’s position were given credence, it would defeat almost any reasonable accommodation. Instead, to meet its burden, MHRI needs to produce at least some modicum of evidence showing that an open-ended schedule would be a hardship, financial or otherwise. See 29 C.F.R. § 1630.2(p) ; e.g., Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 20 (1st Cir.1998) (recognizing that requested accommodation would require that employer reallocate other employees to complete appellant’s data entry work — 6-9 hours’ worth of work per day — to ensure that her deadlines were met); Carr, 23 F.3d at 529 (concluding that “[t]he U.S. Attorney’s Office 4:00 p.m. deadline renders a flexible schedule an undue hardship” because others would have to do plaintiffs work on a regular basis); Guice-Mills, 772 F.Supp. at 199 (reasoning that requested accommodation of 10:00 a.m. start time for Head Nurse was unreasonable burden on hospital because her duties would have to be reassigned). For example, MHRI could have introduced evidence that in order to accommodate Ward, it would need to keep the laboratory open indefinitely at significant cost (extra hours for security personnel or janitorial staff) or that his duties would need to be subsumed by a co-worker. MHRI has only suggested that it would be a burden to require Ward’s supervisor to match his schedule, but as discussed above, there is a factual dispute over Ward’s need for constant supervision to perform the essential functions of his job. B. Discharged Because of Disability Because we also find that there is a genuine dispute as to whether Ward’s tardiness was caused by his disability, we must reverse the district court’s decision. It is undisputed that Ward informed his employer that he had a disability prior to his termination through the new employment application and his conversation with Leonard. The medical evidence unequivocally establishes that" }, { "docid": "3512017", "title": "", "text": "of the broad mandate federal employers have been given to set an example in the employment of disabled individuals, the majority's narrow construction of what constitutes a reasonable accommodation is unwarranted. The regulation in effect at the time Mr. Fedro sought re-employment provided that “[reasonable accommodation may include, but shall not be limited to: ... (2) [j]ob restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.” 29 C.F.R. § 1613.-704(b) (1989). As the majority acknowledges, the regulation has since been modified to expressly include reassignment within its scope. Ante at 1896, n. 5. But nothing in the prior regulation rules out reassignment to a different position; indeed, that option is in perfect company with the alternatives of restructuring and. part-time work that are expressly mentioned in that regulation. As the Equal Employment Opportunity Commission has pointed out, “It may well be the case that reassignment is eminently more reasonable and less onerous from an agency’s perspective than job restructuring or any other action that is specifically listed in § 1613.704(b).” Ignacio v. United States Postal Service, Pet. No. 03840005, Fed.Equal Opportunity Rptr. ¶ 843159, at XII-84-264 (EEOC Sept. 4, 1984); see also Rhone v. United States Dep’t of Army, 665 F.Supp. 734, 744-45 (E.D.Mo.1987); Tate, The Federal Employer’s Duties Under the Rehabilitation Act, 67 Texas L.Rev. at 820-21. The majority’s holding thus brings us into direct conflict with the EEOC, which, in construing the same version of the regulation that we apply today, held that reassignment is among the options that a federal employer must consider to accommodate a disabled employee: The Commission ... finds that the list provided in [§ 1613.704(b)] includes the enumerated suggestions as illustrative “but shall not be limited” to this itemization. The Commission also finds the reasonable accommodation must be a logical adjustment made to a job and/or work environment that enables a qualified handicapped person to perform.... As such, the list of possible means of accommodation is infinite and can only be determined on" }, { "docid": "10465919", "title": "", "text": "is clear that the federal government is under an obligation to adjust or modify working conditions for handicapped employees or applicants when necessary. While a federal employer is not required to eliminate any of the essential functions of the position in question, Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985), it is required to make reasonable accommodation to an employee’s handicaps “unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 29 C.F.R. § 1613.704(a) (1986) (emphasis added). The regulations further explain this requirement: (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) The overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation. 29 C.F.R. § 1613.704. Of the factors contemplated by the EEOC regulations, only a modified work schedule in the form of a daytime shift assignment would have benefitted plaintiff given his need for proper rest and well-established routines. Especially important in this regard was the need to limit his work period to only one eight-hour period since requiring him to arrive early, stay late, or work on other shifts from time to time would clearly be detrimental to his health given his sarcoidosis. The EEOC regulations specifically state, however, that reasonable accommodation shall not be limited to the factors delineated in 29 C.F.R. § 1613.704(b). In this case there are other sources of authority that will serve to" }, { "docid": "10465918", "title": "", "text": "sarcoidosis, a disease which has affected his lymphatic, pulmonary and ocular systems, and which defendants readily agree has precluded him from working the evening or night shifts in his division. Further, plaintiff’s ocular complication has limited his ability to view computer terminal screens. That plaintiff was terminated from his employment because of these handicaps is established. The main point of contention in this case has been whether the defendants were required by law to take further steps to accommodate plaintiff’s special needs so that he might remain in the federal employ. Specifically, the parties have debated at length whether defendant was obligated to search for an alternative position for the plaintiff, even if at a lower employment grade, and whether, as a factual matter, there were any positions for which plaintiff was qualified. In addition, with regard to some of the positions for which plaintiff claims to have been qualified, the question to be decided is his entitlement to such positions vis a vis other employees. With regard to the issue of accommodation, the law is clear that the federal government is under an obligation to adjust or modify working conditions for handicapped employees or applicants when necessary. While a federal employer is not required to eliminate any of the essential functions of the position in question, Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985), it is required to make reasonable accommodation to an employee’s handicaps “unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 29 C.F.R. § 1613.704(a) (1986) (emphasis added). The regulations further explain this requirement: (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency" }, { "docid": "23562984", "title": "", "text": "making reasonable accommodations for handicapped persons. (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704 (1984). After á plaintiff produces sufficient evidence to make at least a facial showing that reasonable accommodation is possible, Treadwell, 707 F.2d at 478, the regulations require that the federal employer bear the burden of proving inability to accommodate. 29 C.F.R. § 1613.704(a). See Prewitt, 662 F.2d at 308; Bey v. Bolger, 540 F.Supp. 910, 924-25 (E.D.Pa.1982). If the employer presents credible evidence that reasonable accommodation is not possible or would be unduly burdensome, then the plaintiff must produce evidence “concerning his individual capabilities and suggestions for possible accommodations to rebut the employer’s evidence.” Prewitt, 662 F.2d at 308. In sum, the ultimate question in an action against a federal employer under § 501 of the Rehabilitation Act, 29 U.S.C. § 791, is whether, with reasonable accommodation, a handicapped person “who meets all employment criteria except for the challenged discriminatory criterion ‘can perform the essential functions of the position in question without endangering the health and safety of the individual or others.’ ” Prewitt, 662 F.2d at 310, citing 29 C.F.R. § 1613.702(f) (1984). The Corps argues that the district court's conclusions concerning “reasonable accommodation” are inconsistent with its findings of fact. Specifically, the Corps argues that in view of the district court’s findings concerning the available medical facilities in the cities to which Gardner was assigned for overseas duty in 1978, the Corps would have acted irresponsibly if it had permitted Gardner to complete his Saudi Arabia assignment because Gardner’s medical condition jeopardized his own" }, { "docid": "22062091", "title": "", "text": "However, the EEOC administrative regulations, which, as noted above, aré entitled to deference, provide some basis for outlining the contours of the surmountable barrier accommodation duty. The relevant EEOC regulation, 29 C.F.R. § 1613.704, provides: (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) The overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation. Thus, under subsection (a) of this provision, the burden of proving inability to accommodate is upon the employer. The administrative reasons for so placing the burden likewise justify a similar burden of proof in a private action based upon the Rehabilitation Act. The employer has greater knowledge of the essentials of the job than does the handicapped applicant. The employer can look to its own experience, or, if that is not helpful, to that of other employers who have provided jobs to individuals with handicaps similar to those of the applicant in question. Furthermore, the employer may be able to obtain advice concerning possible accommodations from private and government sources. See Note, Accommodating the Handicapped: Rehabilitating Section 504 After Southeastern, 80 Colum.L.Rev. 171, 187-88 (1980). Although the burden of persuasion in proving inability to accommodate always remains on the employer," }, { "docid": "23562983", "title": "", "text": "1613.703 (1984). As the Supreme Court noted in Southeastern Community College v. Davis, 442 U.S. at 410, 99 S.Ct. at 2369, § 501(b), 29 U.S.C. § 791(b), unlike § 504, 29 U.S.C. § 794, expressly requires federal employers to develop affirmative action programs on behalf of handicapped persons. Section 501(b), 29 U.S.C. § 791(b), does not specifically describe the types of affirmative action programs that would comply with the statute, but it does require that affirmative action programs contain “sufficient assurances, procedures and commitments to provide adequate hiring, placement, and advancement opportunities for handicapped individuals.” The Rehabilitation Act does not contemplate, however, that a federal employer will launch major restructuring of projects and facilities, disregarding the expense of this accommodation. The 1978 amendments explicitly permit courts to “take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.” 29 U.S.C. § 794a(a)(2) (1982). The EEOC promulgated extensive regulations to guide federal employers in making reasonable accommodations for handicapped persons. (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704 (1984). After á plaintiff produces sufficient evidence to make at least a facial showing that reasonable accommodation is possible, Treadwell, 707 F.2d at 478, the regulations require that the federal employer bear the burden of proving inability to accommodate. 29 C.F.R. § 1613.704(a). See Prewitt, 662 F.2d at 308; Bey v. Bolger, 540 F.Supp. 910, 924-25 (E.D.Pa.1982). If the employer presents credible evidence that reasonable accommodation is not possible or would" }, { "docid": "22267214", "title": "", "text": "of reasonable accommodation. See 45 C.F.R. § 84.12(a) (employer covered by Act “shall make reasonable accommodation ... unless [it] can demonstrate that the accommodation would impose an undue hardship on the operation of its program”); 29 C.F.R. § 1613.704(a) (same); see also Mantelete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir.1985) (in action under § 501 of the Act and 29 C.F.R. § 1613.704(a), “burden of persuasion in proving inability to accommodate always remains on the employer”); Prewitt v. United States Postal Service, 662 F.2d 292, 308 (5th Cir. Unit A Nov. 1981) (same). We note that Mantelete and Prewitt appear to have placed even the initial burden of raising the accommodation issue on the employer, characterizing the plaintiff’s burden as one of coming forward “to rebut” the showing of the employer that no reasonable accommodation is available. See Mantelete v. Bolger, 767 F.2d at 1423-24; Prewitt v. United States Postal Service, 662 F.2d at 308. These cases, however, do not address the fact that the definition of “otherwise qualified” includes reference to “reasonable accommodation.” As indicated above, in our view the inclusion of “reasonable accommodation” in the definition of otherwise qualified makes either (a) the lack of any need for accommodation, or (b) the possibility of reasonable accommodation, a part of the plaintiff’s prima facie case. No burden shifts to the defendant, of course, until the plaintiff has established a prima facie case. In the present case, the district court found that the lifting and handling of 70-pound mail bags were essential functions of the Manual MD Clerk’s job, a finding that has not been challenged on this appeal and that is not clearly erroneous, see Fed. R.Civ.P. 52(a). We thus turn to the matter of Gilbert’s proof that he was qualified, despite his handicap, to perform those functions. 1. Gilbert’s Ability To Perform Without Accommodation Gilbert attempted to prove his claim by showing that he was fully qualified for the position of MD Clerk without any need for accommodation. His contention was that he was fully capable of handling 70-pound mail sacks. Accordingly, when the court asked at" }, { "docid": "23080905", "title": "", "text": "or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704 (1987). The regulations also define the factors that should be considered in determining whether an accommodation would impose an undue hardship on the operation of the agency in question. Id. § 1613.704(c). While it has not always been so, it is now clear, at least in this circuit, that federal employees, including Postal Service employees, alleging handicap discrimination in employment may maintain private causes of action against their employers under both sections 501 and 504 of the Rehabilitation Act. Smith v. United States Postal Service, 766 F.2d 205, 206 (6th Cir.1985) (per curiam); Smith v. United States Postal Service, 742 F.2d 257, 259-60 (6th Cir.1984). See also Gardner v. Morris, 752 F.2d 1271, 1277-78 (8th Cir.1985); Mackay v. United States Postal Service, 607 F.Supp. 271, 274 (E.D.Pa.1985). In her complaint, Hall alleges violations of section 504 of the Act and of the administrative regulations, discussed above, adopted under section 501. As such, we view her complaint as alleging causes of action under section 504 as well as under section 501. Because there is no dispute that Hall was handicapped within the meaning of the Act and was denied a position because of her handicap, the essential inquiry in this case, under either section of the Act, is whether Hall was otherwise qualified for the job of distribution clerk. In terms of the regulations, Hall would meet this requirement— and thus be considered a “qualified handicapped person”—if, “with or without reasonable accommodation, [she] can perform the essential functions of the position in question without endangering” her own health and safety or that of others. 29 C.F.R. § 1613.702(f) (1987) (emphasis added). This definition is essentially the same as that which courts have used for the operative term in section 504 of the Act— “otherwise qualified handicapped individual.” See, e.g., School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); Mantelete v. Bolger, 767 F.2d 1416," }, { "docid": "3252345", "title": "", "text": "be limited to: (1) Making facilities readily accessible ... and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704(b) (1991). These possibilities are to be balanced against considerations of “undue hardship” to the agency. See 29 C.F.R. § 1613.704(a) & (c) (1991). The individual agencies police section 504 and are responsible for promulgating their own regulations. 29 U.S.C. § 794(a). This might have led to a hash of conflicting and contradictory provisions, but it did not, since the agencies have more or less copied the EEOC’s regulations including its definitions of “qualified” and “reasonable accommodation.” See, e.g., 5 C.F.R. §§ 900.-703(e)(1) & 900.706(b)(2) (1992) (Office of Personnel Management); 29 C.F.R. § 32.3 (1991) (Department of Labor); 38 C.F.R. §§ 18.403(k)(l) & 18.412 (1991) (Department of Veterans Affairs); 45 C.F.R. §§ 84.3(k) & 84.12 (1991) (Department of Health and Human Services). The EPA took a more economical route, and simply declared that the EEOC’s regulations apply directly. See 40 C.F.R. §§ 12.103, 12.140 (1991). In sum, litigants must jump through the same hoops to recover under either section 501 or section 504. The plaintiff must be handicapped and qualified. To be qualified, the plaintiff must be able to perform the essential functions of his job, with or without reasonable accommodation by his employer. The only potential difference between sections 501 and 504 is the burden of persuasion on the issue of “reasonable accommodation.” Other circuits have held that under section 501 the burden of proof is on the government to show that a proposed accommodation is unreasonable. Langon, 959 F.2d at 1061; Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.1985); Treadwell, 707 F.2d at 478; Prewitt, 662 F.2d at 308, 310 (full discussion of shifting burdens). Actions under section 504, on the other hand, may require the plaintiff to show that a proposed accommodation is reasonable, although the case law on this issue is, to say the least, complex. Compare Doe v. New York" }, { "docid": "22267213", "title": "", "text": "adjustments as modification of physical facilities, work schedules, or equipment, or some job restructuring, see 45 C.F.R. § 84.12(b), “reasonable accommodation” does not mean elimination of any of the job’s essential functions. See, e.g., Hall v. United States Postal Service, 857 F.2d at 1078 (“an accommodation that eliminates an essential function of the job is not reasonable”); Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985) (“post office was not required to accommodate [plaintiff] by eliminating one of the essential functions of his job”) (emphasis in original). Once the plaintiff has made a prima facie case that she or he is otherwise qualified by showing the ability to perform the essential functions of the job with some reasonable accommodation, the burden shifts to the employer to show that no reasonable accommodation is possible. Indeed, in light of the goals of the Rehabilitation Act and the greater access of the employer to information regarding the feasibility of various possible job modifications, the employer is given the ultimate burden of proof on the issue of reasonable accommodation. See 45 C.F.R. § 84.12(a) (employer covered by Act “shall make reasonable accommodation ... unless [it] can demonstrate that the accommodation would impose an undue hardship on the operation of its program”); 29 C.F.R. § 1613.704(a) (same); see also Mantelete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir.1985) (in action under § 501 of the Act and 29 C.F.R. § 1613.704(a), “burden of persuasion in proving inability to accommodate always remains on the employer”); Prewitt v. United States Postal Service, 662 F.2d 292, 308 (5th Cir. Unit A Nov. 1981) (same). We note that Mantelete and Prewitt appear to have placed even the initial burden of raising the accommodation issue on the employer, characterizing the plaintiff’s burden as one of coming forward “to rebut” the showing of the employer that no reasonable accommodation is available. See Mantelete v. Bolger, 767 F.2d at 1423-24; Prewitt v. United States Postal Service, 662 F.2d at 308. These cases, however, do not address the fact that the definition of “otherwise qualified” includes reference to “reasonable accommodation.”" }, { "docid": "5786548", "title": "", "text": "to the whole population of handicapped persons” in the United States. Shirey v. Devine, 670 F.2d 1188, 1193 (D.C.Cir. 1982). It prohibits, among other things, discrimination against “otherwise qualified handicapped individuals” in federally funded activities. 29 U.S.C. § 794. It is not necessary here to consider whether, as the government contends, plaintiff is required to prove, in order to prevail, that he is able to perform the essential functions of his position in spite of his handicap, see Walker v. Attorney General, 572 F.Supp. 100 (D.D.C.1983), for it is clear that he was not a victim of “surmountable barrier” discrimination. A federal employer has a duty to provide reasonable accommodation for the handicapped. Prewitt v. United States Postal Service, 662 F.2d 292, 307 (5th Cir. 1981); 29 U.S.C. § 791(b). This duty is limited to instances where accommodation would not impose “undue hardship.” Prewitt, 662 F.2d at 308; 29 C.F.R. § 1613.704. While the employer bears the burden of persuading the Court that it provided reasonable accommodation or that it was unable to accommodate him, once it presents credible evidence of either, plaintiff has the burden of going forward with the evidence concerning possible accommodations to rebut the employer’s evidence. See Prewitt, 662 F.2d at 308. The Department here has met its burden of persuasion with evidence that it reasonably accommodated plaintiff’s handicap: specifically, it provided persons to act as readers for plaintiff, it furnished special equipment and office space, and it decreased plaintiff’s workload. Plaintiff, by contrast, did not present persuasive evidence establishing that the additional accommodations he desired — such as a full-time reader of his choice, more technologically advanced equipment, and easier access to additional office space — were necessary for adequate performance of his job. Plaintiff likewise presented no evidence that the benefit to him from receiving these additional accommodations sufficiently outweighed the costs to the Department of providing those accommodations. The government is not obligated under the statute to provide plaintiff with every accommodation he may request, but only with reasonable accommodation as is necessary to enable him to perform his essential functions. Plaintiff has" }, { "docid": "5786547", "title": "", "text": "to include responding to general inquiries directed to the OCR. Two years later, on March 16, 1982, plaintiff received a notice from his supervisor stating that his job performance and work attitude were “unsatisfactory” and advising him that he had 30 days to improve or face termination. On July 2, 1982, plaintiff received a notice of “Decision to Remove” effective July 20, 1982. Plaintiff contends that the Department of Education discriminated against him on the basis of his handicap by requiring him to answer congressional mail, a duty inconsistent with his original job description; by failing to train him in the format to be used in corresponding with congressional offices; and by failing reasonably to accommodate his handicap. He also alleges that his termination was the product of unlawful retaliation. The government asserts that plaintiff was provided reasonable accommodations for the performance of his duties, and that he was discharged for nondiscriminatory reasons. The Rehabilitation Act of 1973 (Act), 29 U.S.C. § 701 et seq., was the “first major federal statute designed to provide assistance to the whole population of handicapped persons” in the United States. Shirey v. Devine, 670 F.2d 1188, 1193 (D.C.Cir. 1982). It prohibits, among other things, discrimination against “otherwise qualified handicapped individuals” in federally funded activities. 29 U.S.C. § 794. It is not necessary here to consider whether, as the government contends, plaintiff is required to prove, in order to prevail, that he is able to perform the essential functions of his position in spite of his handicap, see Walker v. Attorney General, 572 F.Supp. 100 (D.D.C.1983), for it is clear that he was not a victim of “surmountable barrier” discrimination. A federal employer has a duty to provide reasonable accommodation for the handicapped. Prewitt v. United States Postal Service, 662 F.2d 292, 307 (5th Cir. 1981); 29 U.S.C. § 791(b). This duty is limited to instances where accommodation would not impose “undue hardship.” Prewitt, 662 F.2d at 308; 29 C.F.R. § 1613.704. While the employer bears the burden of persuading the Court that it provided reasonable accommodation or that it was unable to accommodate him," }, { "docid": "23080904", "title": "", "text": "Postal Service, 662 F.2d 292, 306 (5th Cir. Unit A 1981) (quoting Ryan v. FDIC, 565 F.2d 762, 763 (D.C.Cir.1977)); see also Mantelete v. Bolger, 767 F.2d 1416, 1421 (9th Cir.1985). The Equal Employment Opportunity Commission (“EEOC”), the agency charged with the enforcement of the Act, has promulgated administrative regulations that define the duties of federal agencies, such as the Post Office, under section 501. The regulations ambitiously declare “[tjhat the Federal Government shall become a model employer of handicapped individuals,” 29 C.F.R. § 1613.703 (1987), and make clear that federal employers have an obligation to make reasonable accommodations for handicapped job applicants: (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704 (1987). The regulations also define the factors that should be considered in determining whether an accommodation would impose an undue hardship on the operation of the agency in question. Id. § 1613.704(c). While it has not always been so, it is now clear, at least in this circuit, that federal employees, including Postal Service employees, alleging handicap discrimination in employment may maintain private causes of action against their employers under both sections 501 and 504 of the Rehabilitation Act. Smith v. United States Postal Service, 766 F.2d 205, 206 (6th Cir.1985) (per curiam); Smith v. United States Postal Service, 742 F.2d 257, 259-60 (6th Cir.1984). See also Gardner v. Morris, 752 F.2d 1271, 1277-78 (8th Cir.1985); Mackay v. United States Postal Service, 607 F.Supp. 271, 274 (E.D.Pa.1985). In her complaint, Hall alleges violations of section 504 of the Act and of the administrative regulations, discussed above, adopted under section" }, { "docid": "3252344", "title": "", "text": "under both provisions. Section 504 authorizes discrimination suits by “otherwise qualified handicapped individual[s].” Section 501(b) is phrased in very different terms: the section says nothing about discrimination or qualifications and merely requires federal agencies to submit affirmative action plans. Nonetheless, section 505(a)(1), 29 U.S.C. 794a(a)(l) (1988), authorizes individual lawsuits against federal agencies that violate the terms of section 501. And regulations promulgated by the Equal Employment Opportunity Commission (EEOC) under section 501 make clear that federal agencies may not discriminate against “qualified physically or mentally handicapped person[s].” 29 C.F.R. § 1613.703 (1991); see generally Langon v. Department of Health and Human Services, 959 F.2d 1053, 1057 (D.C.Cir.1992). Thus, Overton may not maintain an action under either provision unless he is “qualified.” “Qualified” is a defined term. The EEOC polices section 501, 29 U.S.C. 791(b), and defines a qualified handicapped person as one who “with or without reasonable accommodation, can perform the essential functions of the position in question....” 29 C.F.R. § 1613.702(f) (1991). “Reasonable accommodation” is also defined: Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible ... and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. 29 C.F.R. § 1613.704(b) (1991). These possibilities are to be balanced against considerations of “undue hardship” to the agency. See 29 C.F.R. § 1613.704(a) & (c) (1991). The individual agencies police section 504 and are responsible for promulgating their own regulations. 29 U.S.C. § 794(a). This might have led to a hash of conflicting and contradictory provisions, but it did not, since the agencies have more or less copied the EEOC’s regulations including its definitions of “qualified” and “reasonable accommodation.” See, e.g., 5 C.F.R. §§ 900.-703(e)(1) & 900.706(b)(2) (1992) (Office of Personnel Management); 29 C.F.R. § 32.3 (1991) (Department of Labor); 38 C.F.R. §§ 18.403(k)(l) & 18.412 (1991) (Department of Veterans Affairs); 45 C.F.R. §§ 84.3(k) & 84.12 (1991) (Department of Health and Human Services). The EPA took a more economical route, and simply" } ]

[ { "docid": "23300940", "title": "", "text": "deposition, furthermore, makes clear that he did not rely upon any alleged misstatements by the International Union. Indeed, he conceded that he had heard that the International Union had not changed course on the issue of transfer rights under the supplemental agreement. From his own statements, then, Lacey knew in February, 1992 that he had been wronged by the International Union, and nothing subsequently changed that assessment. As for assertions of reliance in his affidavit, Lacey puts his money on the wrong horse: “[i]t is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.” Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); see also Jones v. General Motors Corp., 939 F.2d 380, 385 (6th Cir.1991) (“a plaintiff may not create a factual issue for the purpose of defeating a motion for summary judgment by filing an affidavit contradicting a statement made in a prior deposition”). We therefore hold that the International Union is not equitably estopped from asserting the limitations period as a defense as against Lacey. Buttry’s case for equitable estoppel against the International Union is more appealing. Pinsonneault’s alleged misstatement was made directly to Buttry. But see Boss v. International Bhd. of Boilermakers, 567 F.Supp. 845, 847-48 (N.D.N.Y.) (a local union chapter is not an agent of the international union if that local chapter is autonomous and independent), aff'd 742 F.2d 1446 (2d Cir.1983). And Buttry’s repeated attempts to contact International Union officials to discuss their planned role at the arbitration lend some credence to her claims of reasonable reliance. But see King, 785 F.2d at 35 (it is unreasonable to rely upon “vague oral assertions of low level officials of the local union that [a] matter was to be arbitrated” when high level officials have flatly stated that the union will not act on the plaintiffs behalf (internal quotations omitted)). Finally, even though several of But-try’s deposition statements suggest that she knew that she had been wronged by the International Union in February, and did not change that view," } ]

[ { "docid": "12314265", "title": "", "text": "Ask A1 Douglas — discrimination—Age, handicapped.” (Douglas Aff. ¶ 46 & Ex. H.) Cowan explained the note as follows: \"That is with regard to asking attorneys about the fact we were probably going to be firing Al [Douglas], and what may happen if he were to raise a discrimination case.” (Cowan Dep. at 107; see also id. at 101-12.) . The Court expresses grave doubts as to the veracity of this additional information, in light of Douglas' failure to testify to this alleged overheard statement at his deposition despite extensive deposition questioning about the October 24, 1995 meeting. (See Defs.’ Reply Br. at 12-13.) See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997) (\"To the extent that Raskin’s earlier deposition testimony is at odds with his declaration, we follow the rule that 'a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.’ ”) (quoting Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996)); Buti v. Impressa Perosa S.R.L., 935 F.Supp. 458, 471-72 (S.D.N.Y. 1996) (Schwartz, D.J. & Peck, M.J.) (citing cases), aff'd, 139 F.3d 98 (2d Cir.1998). Even without the allegedly overheard comment, however, Douglas’ testimony about the October 24, 1995 meeting likely would be enough to raise an issue of fact as to whether the owner’s consultants recommended that Douglas be fired because of his walking with crutches. Because of the Court's recommendation that defendants' summary judgment motion be granted without the need to reach that issue, however, the fact dispute — and veracity of Douglas' affidavit as to this overheard statement — is of no moment. . Douglas also filed EEOC claims and received right to sue letters as to Arthur G. Cohen and Anton Cirulli. (Defs.' Exs. 29-30.) Plaintiff Douglas’s claims in this suit against Cohen and Cirulli were dismissed with prejudice pursuant to Stipulation & Order. (See Defs.’ Exs. 8, 9.) . Douglas' opposition papers fail to address his claims under the New York State Human Rights" }, { "docid": "9530391", "title": "", "text": "or the beginning of 1999, Defendant provided Plaintiff with oxygen to aid Plaintiff with her breathing. Def.’s 56.1 Stmt. ¶ 72. The oxygen was supplied free of charge. Id. ¶ 74. This service included delivering the oxygen tanks, setting up respiratory equipment and removing the used tanks. Id. ¶ 75. B. Events Leading to Plaintiffs Termination 1. Preliminary Observations Plaintiff maintains that each of the reasons provided by Defendant for her termination is merely a pretext for disability discrimination. Not surprisingly, therefore, she currently contests the bulk of Defendant’s rendition of the pre-termi-nation events. In doing so, however, she has, on certain pivotal issues, run afoul of the rule that “a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affirmant’s previous deposition testimony.” Haynes v. New York City Dep’t of Corrs., 84 F.3d 614, 619 (2d Cir.1996); see also Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987) (“It is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.”). Here, Plaintiff has not submitted an affidavit. But in her Rule 56.1 statement she attempts to create a material issue of fact by disputing Defendant’s contention that she was selling chocolate lollipops in the shape of a penis at the Hospital. See Pl.’s Rule 56.1 Stmt. ¶¶ 87,90 (“Plaintiff never sold the chocolates in the form of a man’s penis”), ¶ 91. During her deposition, however, Plaintiff testified as follows: Q. Did you ever sell chocolates in the shape of a man’s penis? A. Yes. Pl.’s Dep. at 127. Q. Miss Costello, I want to show you what the hospital has obtained and ask you if this is one of the chocolates that you were selling. It’s in a zip lock bag, and I’d ask you not to remove it from the zip lock bag and also to handle it carefully. I ask you to look at that, please. Is that one of the chocolates you" }, { "docid": "4267047", "title": "", "text": "personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” And \"a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.” Hayes v. New York City Dep't of Con., 84 F.3d 614, 619 (2d Cir.1996). “If, however, the allegations in the affidavit, rather than contradicting, explain or amplify prior deposition testimony, then the affidavit may create a genuine issue of material fact sufficient to defeat summary judgment.” Id. Defendants’ objections to the Price Declaration are generally cursory, stating, for exam-pie, that the paragraph is \"speculative” or that Price “lacks personal knowledge” of the contents of the paragraph. (See, e.g., Defs.’ Objs. at 1.) Where the Court cites a paragraph to which defendants object, defendants’ objection has been found unpersuasive. For example, here, defendants objected to paragraph 37 on the grounds that it contradicted plaintiff’s testimony on page 263. Defendants, however, failed to identify the contradiction, and the Court fails to see one. (Compare Price Decl. V 37 (\"In the middle of 2005, I brought three or four siddurs (prayerbooks in Hebrew) to my cubicle, which I used in praying. When Podell saw one of tire siddurs, openly displayed, she demanded that I move it out of sight.”) with Price Dep. at 262-63 (“Q: All right. Could you explain to me what happened with the siddurs? A: Joanne Po-dell told me take the siddurs down from — I have — I'm sitting in a cubicle. Q: Uh-huh. A: And she told me to take it down, because she didn’t want people to see it. Q: How many siddurs were there? A: Three or four, regular size books.”).) . The Home Depot deal ultimately did not materialize. (Defs.' Rule 56.1 Stmt. ¶ 97.) . Defendants’ Rule 56.1 Statement ¶ 101, which Price admits, indicates that this meeting happened on April 17, 2006, and cites to Reingold’s deposition testimony, but Reingold testified therein that the meeting" }, { "docid": "6512708", "title": "", "text": "does not derive any facts from the Affidavit of Almethia Middleton, dated October 31, 2007 (\"Middleton Aff.”) as the affidavit contradicts or improperly adds to her deposition testimony. A party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony. See Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir.1996) (holding that factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not \"genuine” issues for trial) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). Additionally, the Court does not rely on Plaintiff's Statement Pursuant to Rule 56.1, as the bare denials do not provide any reference to admissible evidence as required by Local Rule 56.1(d), and the additional paragraphs rely exclusively on the Middleton Aff., which the Court has previously stated should be disregarded. . Mack stated that the staff should use the meeting to \"air out [their] shit.” (Mack Deck, ¶ 6.) . Middleton also asserts in her Reply Memorandum in Opposition to Defendant's Motion for Summary Judgment that she reported the sexual harassment to Latham on February 19, 2003. However this statement relies on Middleton’s Aff., which the Court has already noted should be disregarded because it inappropriately adds to her deposition testimony. At Middleton’s deposition, she stated that she had told Latham what Williams had said at the February 13 Meeting, but stated that she did not remember anything else that was said at the February 19 Meeting. (See Middleton Dep., 202:23-25, 209:15-25; 214:2-3.)" }, { "docid": "9530390", "title": "", "text": "and a Sexual Harassment Policy. See id. ¶¶ 28-41. Plaintiff admits that she was aware of these policies, that they pertained to her and that she was charged with enforcing them. Id.n 25-43. Plaintiffs employment was terminated on February 10, 2000. Pl.’s Dep. at 55; Aff. of Martin Bieber (“Bieber Aff.”) ¶ 52. She was advised that the reasons given for her termination were theft of time, sexual harassment and solicitation. PL’s Dep at 55-56. With respect to Plaintiffs physical condition, she first started suffering from Primary Pulmonary Hypertension. Id. ¶ 47. One of the symptoms of this condition is shortness of breath. PL’s 56.1 Stmt. ¶ 48. On several occasions, Plaintiffs condition caused her to be hospitalized. Def.’s 56.1 Stmt. ¶ 77. When this occurred, Plaintiff would perform her duties with a laptop that was installed by “her bedside.” Dep. of Anthony Vellucci (“Vellucci Dep.”) at 39. Plaintiff was also provided with a laptop computer to perform work at home. Dep. of Joanne Casper (“Casper Dep.”) at 23. Starting at the end of 1998 or the beginning of 1999, Defendant provided Plaintiff with oxygen to aid Plaintiff with her breathing. Def.’s 56.1 Stmt. ¶ 72. The oxygen was supplied free of charge. Id. ¶ 74. This service included delivering the oxygen tanks, setting up respiratory equipment and removing the used tanks. Id. ¶ 75. B. Events Leading to Plaintiffs Termination 1. Preliminary Observations Plaintiff maintains that each of the reasons provided by Defendant for her termination is merely a pretext for disability discrimination. Not surprisingly, therefore, she currently contests the bulk of Defendant’s rendition of the pre-termi-nation events. In doing so, however, she has, on certain pivotal issues, run afoul of the rule that “a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affirmant’s previous deposition testimony.” Haynes v. New York City Dep’t of Corrs., 84 F.3d 614, 619 (2d Cir.1996); see also Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987) (“It is well settled in this circuit that" }, { "docid": "13075884", "title": "", "text": "Robert Savage of Defendant’s Personnel Department to express my concerns about the treatment I was receiving. After hearing my concern, Mr. Savage advised me that the matter would have to be referred to the E.E.O.C. and that the investigation could take several months. Dixit Aff., ¶¶ 18-19. The defendant argues that the allegations in the affidavit contradict Mr. Dixit’s deposition testimony and therefore must be disregarded. See Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). However, there does not appear to be any direct contraction. While Mr. Dixit states in his affidavit that he intended to discuss his concerns regarding racial and religious discrimination, he does not suggest that he actually used these words in his meeting with Mr. Savage. Rather, the plaintiff continues to assert simply that Mr. Savage understood the import of his complaints about differential treatment. Certainly, a plaintiffs subjective belief that he has been discriminated against on the basis of race, religion, or national origin cannot be the basis for a retaliation claim unless a complaint is effectively communicated to the appropriate authority. “To make out a prima facie case of retaliation, an employee must show that the employee was engaged in protected activity; that the employer was aware of thUt activity; that the employee suffered adverse employment decisions; and that there was a causal connection between the protected activity and the adverse employment action.” Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (emphasis added, citations omitted). Mr. Dixit’s mere assertions that he met with Mr. Savage intending to complain about discrimination therefore would not suffice. Mr. Dixit’s allegations go further than this, however. He asserts that when he complained of disparate treatment, Mr. Savage replied that this would necessitate an investigation. Aronson Deck, Exh. B at 144. Furthermore, in his affidavit, the plaintiff avers that Mr. Savage said that the matter" }, { "docid": "16830713", "title": "", "text": "Martin Ice Cream Co. v. Chipwich, Inc., 554 F.Supp. 933, 940 n. 15 (S.D.N.Y. 1983) (refusing to consider allegation first raised in reply papers, and not suggested in the complaint); Medical Arts Pharmacy of Stamford, Inc. v. Blue Cross & Blue Shield of Connecticut, Inc., 518 F.Supp. 1100, 1109 (D.Conn.), aff'd, 675 F.2d 502 (2d Cir.1982). Moreover, at his deposition, McAllister did not name Pekusic or Rabassa as having assaulted him. {See Baldwin Aff.Ex. B: McAllister Dep. at 107, 12, & Berman Aff.Ex. B: McAllister Dep. at 231-32, both quoted at pages 692-93 above.) It is black letter law that affidavits which contradict prior deposition testimony are disregarded on a summary judgment motion. See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997) (“[W]e follow the rule that ‘a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.’ ”); Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996); Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995); Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987) (“It is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.”); EEOC v. Johnson & Higgins, Inc., 93 Civ. 5481, 1998 WL 778369 at *7 (S.D.N.Y. Nov.6, 1998) (Peck, M.J.); Douglas v. Victor Capital Group, 21 F.Supp.2d 379, 386 n. 7 (S.D.N.Y.1998) (Stein, D.J. & Peck, M.J.); SEC v. Softpoint, Inc., 958 F.Supp. 846, 860 (S.D.N.Y.1997) (Sotomayor, D.J.), aff'd mem., 159 F.3d 1348 (2d Cir.1998); Buti v. Impressa Perosa, S.R.L., 935 F.Supp. 458, 471-72 (S.D.N.Y.1996) (Schwartz, D.J. & Peck M.J.) (citing cases), aff'd, 139 F.3d 98 (2d Cir.), cert. denied, - U.S.-, 119 S.Ct. 73, 142 L.Ed.2d 57 (1998); Ergotron, Inc. v. Hergo Ergonomic Support Sys., Inc., 94 Civ. 2732, 1996 WL 143903 at *6 (S.D.N.Y. March 29,1996). Officer Pekusic submitted an affidavit that he did not have any physical contact with McAllister. (Pekusic Aff. ¶ 7.)" }, { "docid": "3118826", "title": "", "text": "56(f). Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat á motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.1986). The court, of course, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir.1990). However, the party opposing summary judgment “may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.” Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996). II. Judgment on the Pleadings Standard In considering a motion for judgment on the pleadings or dismissal under Federal Rule of Civil Procedure 12, the defendants must show that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). The Court must view the complaint and draw all reasonable inferences in the light most favorable to the non-moving party. Id. III. The Plaintiff’s § 1983 Claims In their responding papers, the defendants addressed the plaintiffs § 1983 claim first, and stated that the plaintiff has failed to prove that they deprived him of a Constitutionally-protected property right. Abrams’ Memorandum of Law (“Abrams’ Memo”), at 5; City Defendants’ Memorandum of Law (“City Memorandum”), at 1. The defendants contend that the plaintiff has failed to allege a deprivation of a federally protected right, and additionally Abrams alleges that she was not a state actor, and therefore, not acting under color of state law. Section 1983 provides in pertinent part, Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to" }, { "docid": "5483946", "title": "", "text": "that it was proper for her to clarify her response in an affidavit submitted in opposition to summary judgment in which she indicates that she was “violently shoved head first into the police car.” However, Maxwell incorrectly cites the Court’s Decision, omitting the clear question and response, directly preceding the one cited, that led this Court to hold that Maxwell should not be permitted to alter her deposition testimony in her opposition to Municipal Defendants’ motion for summary judgment. In its Decision, the Court held that “with regard to being pushed in head first”, in her additional affidavit [Maxwell] directly contradicts her deposition testimony, in which she indicates, in response to being questioned if she was pushed in head first, “I was shoved. I don’t know. It was just like ‘get in.’” Maxwell, 2003 WL 21638216, at *9. The question posed to Maxwell that elicited this very clear response was, “So, when he shoved you into the car, was it head first or did he turn you around and seat you?” (Maxwell Dep. at 74-75.) After unambiguously indicating, under oath, in response to a clear and precise question that she did not remember how she was “shoved” in the car, and that it was “just like ‘get in,’ ” the Court can not permit Maxwell to reconsider her answer and thereafter give a different response later in the proceedings. As the Court explained in the Decision, “[a] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.” Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996). Moreover, the Court is not convinced that Maxwell’s original testimony was “ambiguous, confusing or incomplete” so as to warrant elaboration. Palazzo v. Corio, 232 F.3d 38, 43 (2d Cir.2000). Maxwell’s cite to Langman Fabrics v. Graff Californiawear, 160 F.3d 106, 112 (2d Cir.1998), and Palazzo to support her position is unpersuasive because the question posed to her at her deposition and the response given, cited by the Court in" }, { "docid": "22374525", "title": "", "text": "1989. 2. Vassar’s Treatment of CEQs Bickerstaff next argues that Vassar departed from procedure by placing undue emphasis on her CEQs as an instrument for evaluating her teaching ability. In support of summary judgment, Vassar submitted the affidavit of Dean Kalin, who opined that CEQs have been the primary evaluative tool used to measure teaching for the purpose of promotional decisions. According to Dean Kalin, though there is no “bright line divide” at which an applicant’s CEQs evidence either marked distinction or teaching of high quality, successful applicants regularly receive seventy to eighty percent of their scores in the top two categories on the key questions of overall effectiveness of the course and overall effectiveness of the instructor. In opposition to summary judgment, Bickerstaff submitted her own affidavit stating that CEQs are not the primary instrument used to evaluate teaching and that Vassar’s undue emphasis on her CEQs is evidence that she was treated differently than others. In her deposition testimony, however, Bickerstaff admitted that Vassar relies almost exclusively on CEQs in evaluating teaching. It is beyond cavil that “a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that ... contradicts the affiant’s previous deposition testimony.” See, e.g., Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (citations omitted). For this reason alone, Bickerstaffs affidavit does not create a genuine issue of material fact. We also note another admission by Bickerstaff confirming the consistent use of CEQs in evaluating teaching ability. Namely, just six months before her own promotional review, Bickerstaff authored a recommendation against tenure for an African-American woman with a joint appointment, in which she herself relied considerably on CEQs in evaluating the candidate’s teaching ability. Furthermore, Bickerstaff has not otherwise shown that her CEQs were unduly emphasized in comparison to those of other candidates. Rather, the numerous promotional review materials in the record support Vassar’s position that it relies predominantly on CEQs in evaluating teaching ability. The record thus shows that Bickerstaff was treated no differently than other candidates in using" }, { "docid": "5483947", "title": "", "text": "After unambiguously indicating, under oath, in response to a clear and precise question that she did not remember how she was “shoved” in the car, and that it was “just like ‘get in,’ ” the Court can not permit Maxwell to reconsider her answer and thereafter give a different response later in the proceedings. As the Court explained in the Decision, “[a] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.” Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996). Moreover, the Court is not convinced that Maxwell’s original testimony was “ambiguous, confusing or incomplete” so as to warrant elaboration. Palazzo v. Corio, 232 F.3d 38, 43 (2d Cir.2000). Maxwell’s cite to Langman Fabrics v. Graff Californiawear, 160 F.3d 106, 112 (2d Cir.1998), and Palazzo to support her position is unpersuasive because the question posed to her at her deposition and the response given, cited by the Court in the Decision, were clear, precise and unambiguous. Therefore, that Maxwell, in response to another question, which Maxwell contends was focused on a different issue — as to whether or not she fell into the back seat — answered in a manner that was potentially ambiguous does not change the Court’s determination that its reliance on the deposition testimony and not on Maxwell’s subsequent affidavit is appropriate. Having carefully read through Maxwell’s deposition, the Court is persuaded that the alleged force used by Mannuzza, as described by Maxwell herself, was not objectively unreasonable so as to create a constitutional violation. See Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir.1990). Hence, there is no material fact in dispute to be determined by a jury with regard to Maxwell’s excessive force claim. Second, Maxwell claims that the Court erred by improperly indicating that she had not addressed Municipal Defendants’ motion to dismiss Maxwell’s state law negligence claim. However, the Court notes that Maxwell’s response to the argument advanced by Municipal Defendants that she failed to fide the" }, { "docid": "22374526", "title": "", "text": "is beyond cavil that “a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that ... contradicts the affiant’s previous deposition testimony.” See, e.g., Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (citations omitted). For this reason alone, Bickerstaffs affidavit does not create a genuine issue of material fact. We also note another admission by Bickerstaff confirming the consistent use of CEQs in evaluating teaching ability. Namely, just six months before her own promotional review, Bickerstaff authored a recommendation against tenure for an African-American woman with a joint appointment, in which she herself relied considerably on CEQs in evaluating the candidate’s teaching ability. Furthermore, Bickerstaff has not otherwise shown that her CEQs were unduly emphasized in comparison to those of other candidates. Rather, the numerous promotional review materials in the record support Vassar’s position that it relies predominantly on CEQs in evaluating teaching ability. The record thus shows that Bickerstaff was treated no differently than other candidates in using CEQs as the chief instrument to assess her qualifications to teach. While it is plain that Bick-erstaff and others genuinely take issue with Vassar’s emphasis on CEQs as the chief evaluative tool for teaching ability, such disagreement is not relevant to Bick-erstaffs discrimination claim. Bickerstaff also contends that Vassar’s failure to have her full set of CEQs considered by FASC and the Education Committee is evidence of possible CEQ manipulation and bad faith. We do not believe this is the case for two reasons: first, the evidence does not support a finding of bad faith on the part of Vassar; and second, the initial omission of some of her CEQs from her review packet could not have affected the promotional decision. The allegation of bad faith finds scant support in light of the fact that once Vassar discovered the error, it took corrective action and requested the AS Committee to review Bickerstaffs complete set of CEQs and issue an addendum report. Vassar took additional remedial measures in holding a joint meeting between the President, the" }, { "docid": "6092017", "title": "", "text": "for vocational services from VESID, plaintiff said that he left Ailing & Cory “because [he] could no longer do job.” Notwithstanding his prior testimony and the other documentary evidence, however, plaintiff now maintains to the contrary that he “could have performed his job despite amputations.” Plaintiffs Statement of Disputed Facts, Dkt. # 15, para. 5. This directly contradicts his prior deposition testimony, and is insufficient to create a question of fact on this issue. Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997) (“a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony”) (quoting Hayes v. New York City Dep’t of Corrections, 84 F.3d 614 (2d Cir.1996)); Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987) (“[i]t is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment”). Moreover, plaintiffs responding affidavit suggests what plaintiff claimed before the lawsuit, that he could not perform his job. See Needle Affidavit, Dkt. # 14, paras. 10-11 (“During the latter part of 1996, and early 1997 , despite having amputations, I was still capable of performing the essential duties of a warehouse worker. However, after an onset of complications, I required more amputations, and as a result, could only stand no longer than 1-2 hours per day”). I believe that the record is clear that even plaintiff conceded his inability to perform the essential functions of his job. Accordingly, plaintiff has failed to establish that he was “otherwise qualified” for his job. In spite of this, Needle insists that Ailing & Cory should have made a reasonable accommodation by giving him other work, the exact nature of which he does not specify. In fact, plaintiff contends that he “brought this action because ... Ailing & Cory has not made any accommodation for him per his request, i.e. [sic ] change job positions.” Plaintiffs Memorandum, p. 5 (emphasis added). In support, plaintiff has suggested “job-splitting,” transfer" }, { "docid": "1421887", "title": "", "text": "issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition,- contradicts the affiant’s previous deposition testimony.” Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996). It is equally well settled that in diversity actions federal court sits and op erates as if it were “ ‘only another court of the state/ and must apply state substantiate law. GTFM, LLC v. TKN Sales, Inc., 257 F.3d 235, 241 (2d Cir.2001) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)). Defendants’ Motion Regarding Manpower, Inc. Plaintiffs Amended Complaint contains seven causes of action. Of those, three are against defendant Manpower, Inc. In her memorandum of law (docket # 26), at 30, plaintiff concedes that Manpower, Inc., cannot be vicariously liable for actions taken by Rochester Manpower, Inc. Thus, plaintiff does not oppose defendants’ motion for summary judgment relative to the claims against Manpower, Inc. Therefore, the Court dismisses the causes of action against Manpower, Inc., which are the second, fourth and seventh causes of action. Familg and Medical Leave Act, Title VII, Pregnancy Discrimination Act & New York Human Rights Law Title 29 U.S.Code § 2612(a)(1) entitles an eligible employee to a total of twelve workweeks of leave during any twelve month period for the birth of a son or daughter, or in order to care for a son or a daughter. The term “eligible employee” is defined in § 2611(2)(A) as an employee who has been employed for at least twelve months by the employer with respect to whom leave is requested under § 2612 and for at least one thousand two hundred fifty hours of service with such employer during the previous twelve month period. In her amended complaint, plaintiff adds sufficient factual allegations to prove that she was an eligible employee. See Amended Complaint at ¶¶ 12 - 13. In addition, the statute also defines the term “employer” under § 2611(4) as any person engaged in commerce or in any industry or activity affecting commerce who employs" }, { "docid": "12403387", "title": "", "text": "or retaliated against her, the district court is free to re-consider summary judgment for Verizon. We note, however, that the district court erred when it concluded that it “must disregard” Christopher Gaglione’s sworn statement that Moll’s transfer was motivated by retaliatory intent because it con tradicted his prior deposition testimony. Moll, 2012 WL 1985087, at *22. The district court was not required to disregard Gaglione’s testimony. In November 2005, when Gaglione was employed by Verizon, he testified at his deposition that there was a valid reason for Moll’s transfer to the Syracuse office— specifically, to centralize resources in the office where Gaglione, their manager, was located. In November 2011, however, after Gaglione was fired from Verizon, he stated in a declaration that “[t]he primary factor for [the] decision [to transfer Moll] was an effort to retaliate against ... [her] for [her] continuing complaints of discrimination and retaliation.” He went on to say that Verizon “justified this transfer with the pretext that all [System Engineers] ... should work together.” The district court determined that it “must disregard” Gaglione’s second statement “because it contradicts his prior deposition testimony.” Id. We conclude that this was error. The “sham issue of fact” doctrine “prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir.2013) (per curiam) (emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (“[Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony.”); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). The purpose of the doctrine is clear: “[i]f a party who has been examined at length on deposition could" }, { "docid": "8955543", "title": "", "text": "background is derived from Defendants’ Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1, filed July 12, 2010 (\"R. 56.1”), the exhibits annexed thereto (\"D. Ex.”), Plaintiff’s Response to Defense 56.1 Statement, filed October 13, 2010 (\"Counter R. 56.1”), and the exhibits annexed thereto (\"P. Ex.”). Pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (\"Local Rules”), ”[t]he papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party.” Local Rule 56.1(b). Additionally, \"each statement controverting any statement of material fact[ ] must be followed by citation to evidence which would be admissible!] as required by Federal Rule of Civil Procedure 56(e).” Local Rule 56.1(d). Where a party opposing a motion for summary judgment fails to specifically controvert a statement of material fact, the statement is \"deemed to be admitted for the purposes of the motion.” Local Rule 56.1(c); see also Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 312 (2d Cir.2008). Thus, in arriving at these undisputed facts, we reject as insufficient: (1) conclusory or non-responsive objections; (2) objections that omit citations to admissible evidence; and (3) responses that simply advocate for a different spin on otherwise uncontroverted facts. Moreover, we disregard responses that contradict Hartley's prior deposition testimony because a party’s affidavit that contradicts his or her own prior testimony cannot raise a genuine issue of fact on a motion for summary judgment. See Clayborne v. OCE Business Servs., 381 Fed.Appx. 32, 35 (2d Cir.2010) (“Conclusory allegations cannot create a genuine issue of fact, nor may a party create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”) (internal citations and quotations omitted); Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987) (\"It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary" }, { "docid": "6512707", "title": "", "text": "misconduct brought by MCNY as the legitimate, non-retaliatory reason for Middleton’s discharge was false and merely a pretext for unlawful retaliation. IV. ORDER For the reasons stated above, it is hereby ORDERED that the motion for summary judgment of defendant Metropolitan College of New York (Docket No. 25) herein is GRANTED. The Clerk of Court is directed to withdraw any pending motions and to close the case. SO ORDERED. . The factual recitation set forth below is drawn from Defendant’s Local Rule 56.1 Statement, dated September 17, 2007; Defendant's Memorandum of Law in Support of Motion for Summary Judgment, dated September 17, 2007; Defendant’s Reply Memorandum of Law in Further Support of Motion for Summary Judgment, dated December 3, 2007; the Declaration of Susan Latham, dated 10, 2007 (\"Latham Decl.”); the Declaration of Lisa M. Brauner, dated September 17, 2007 (\"Brauner Decl.”); and the Declaration of Rae Mack, dated September 14, 2007 (\"Mack Decl.”). Except as quoted or otherwise cited, no other specific reference to these documents will be made. The Court notes that it does not derive any facts from the Affidavit of Almethia Middleton, dated October 31, 2007 (\"Middleton Aff.”) as the affidavit contradicts or improperly adds to her deposition testimony. A party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony. See Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir.1996) (holding that factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not \"genuine” issues for trial) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). Additionally, the Court does not rely on Plaintiff's Statement Pursuant to Rule 56.1, as the bare denials do not provide any reference to admissible evidence as required by Local Rule 56.1(d), and the additional paragraphs rely exclusively on the Middleton Aff., which the Court has previously stated should be disregarded. . Mack stated that the staff should use the meeting to \"air out [their]" }, { "docid": "1421886", "title": "", "text": "106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Off-Shore, Inc., 948 F.2d 187 (5th Cir.1991); Fed.R.Civ.P. 56(f). Mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.1986). The Court, of course,, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. See Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir.2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir.1990). However, the party opposing summary judgment “may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition,- contradicts the affiant’s previous deposition testimony.” Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996). It is equally well settled that in diversity actions federal court sits and op erates as if it were “ ‘only another court of the state/ and must apply state substantiate law. GTFM, LLC v. TKN Sales, Inc., 257 F.3d 235, 241 (2d Cir.2001) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)). Defendants’ Motion Regarding Manpower, Inc. Plaintiffs Amended Complaint contains seven causes of action. Of those, three are against defendant Manpower, Inc. In her memorandum of law (docket # 26), at 30, plaintiff concedes that Manpower, Inc., cannot be vicariously liable for actions taken by Rochester Manpower, Inc. Thus, plaintiff does not oppose defendants’ motion for summary judgment relative to the claims against Manpower, Inc. Therefore, the Court dismisses the causes of action against Manpower, Inc.," }, { "docid": "22357366", "title": "", "text": "against a Crewmember who complains of discrimination or harassment is strictly prohibited and will result in appropriate disciplinary action,” and a “supervisor to whom a Crewmember brings a complaint ... but who fails to take appropriate action to resolve it will also be disciplined.” This policy specifically states that it applies to all forms of harassment and discrimination. Gorzynski does not argue that the policies described in the Blue Book are insufficient with respect to the first element of the Faragher/Ellerth defense. The second — and contested — element requires JetBlue to demonstrate that Gorzynski unreasonably failed to take advantage of the policy described in the Blue Book. The District Court found that Jet-Blue met this burden after concluding that “Plaintiff has presented no evidence that she has complained to anyone regarding any of the conduct she now alleges constitutes sexual harassment.” But the record belies this finding. Gorzynski’s affidavit in opposition to summary judgment avers that she complained to Celeste, among other things, about the comments he made over the loudspeaker in the airport regarding her and Harrison, and that he neither apologized nor faced any disciplinary action. Indeed, in a footnote the District Court acknowledges this complaint, but then fails to credit it with any legitimacy because it was not addressed in Gorzynski’s deposition testimony. We have held that a party cannot create an issue of fact by submitting an affidavit in opposition to summary judgment that contradicts prior deposition testimony. See Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). If, however, the allegations in the affidavit, rather than contradicting, explain or amplify prior deposition testimony, then the affidavit may create a genuine issue of material fact sufficient to defeat summary judgment. See Hayes v. N.Y. City Dep’t of Corr., 84 F.Sd 614, 620 (2d Cir.1996). JetBlue does not contend that the affidavit is contradictory, and, for purposes of summary judgment, we take as true Gorzynski’s allegation that she complained to Celeste about his sexually harassing behavior. JetBlue, however, argues to us that even conceding that Gorzynski complained to Celeste, she did" }, { "docid": "12403388", "title": "", "text": "disregard” Gaglione’s second statement “because it contradicts his prior deposition testimony.” Id. We conclude that this was error. The “sham issue of fact” doctrine “prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir.2013) (per curiam) (emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (“[Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony.”); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). The purpose of the doctrine is clear: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Thus, factual issues that a party creates by filing an affidavit crafted to oppose a summary judgment motion that contradicts that party’s prior testimony are not “genuine” issues for trial. Id. Here, however, Gaglione was not a party to the action, nor did he have a familial or other close relationship with the plaintiff that suggests Moll could influence Gaglione’s testimony. Moreover, there is nothing in the record to suggest that Ga-glione submitted the declaration solely to create a genuine issue of fact. Therefore the district court was not required to disregard Gaglione’s second sworn statement. In certain circumstance we have held that sham issue of fact doctrine applies to third-party witnesses, particularly expert witnesses. See Fosamax, 707 F.3d at 193 (holding that the sham affidavit doctrine" } ]

[ { "docid": "11583028", "title": "", "text": "abandoned by the Bryan Petroleum Corporation on February 27, 1945, as it had a right to do under its contract with plaintiff. At this time the well had been sunk about one-fourth of its expected depth. Later, plaintiff caused to be erected above the surface of the waters a platform to support the drilling machinery, and an oil well was drilled in the bottom of the lake at another site. In the case of a taking, the measure of just compensation is the difference in the market value of the property taken before and after the taking. For parallel examples, see Vandiver v. United States, 67 Ct.Cl. 125; 11,000 Acres of Land, More or Less, Situated in Smith County, Tex. v. United States, 5 Cir., 152 F.2d 566, 568, certiorari denied 328 U.S. 835, 66 S.Ct. 980, 90 L.Ed. 1611. Since in 1945 there were no sales of gas and oil leases in the area here concerned upon which a market value at or near the time of taking could be established, resort must be had to other factors. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336. See also American-Hawaiian Steamship Co. v. United States, Ct.Cl., 124 F.Supp. 378. Expert testimony has been introduced to show the difference in market value of the leasehold here involved before and after inundation. Our task is to evaluate this testimony and to arrive at a figure which in our judgment represents just compensation. Defendant’s witness C. V. Sidwell testified that plaintiff Potts’ lease was worth $240,000 before the inundation, and $200,000 thereafter, a difference of $40,-000. Sidwell is a graduate geologist and the head of the Department of Petroleum Production at the University of Tulsa, Oklahoma. He had had extensive experience as a consultant for major oil companies and for the United States. Plaintiffs’ witness, O. H. Hill, was a consulting petroleum geologist with experience in the valuation of leasehold estates. He valued the lease before the inundation at only $200,000, as against Sidwell’s valuation of $240,000. However, after inundation he valued the leasehold at only $20,000." } ]

[ { "docid": "22625287", "title": "", "text": "operation. In a series of cases this court has held that monetary conditions, such as these, for permission to transfer a vessel are unlawful and beyond the Commission’s authority under Section 9 of the Shipping Act. Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576 (1954), cert. denied, 348 U.S. 834; Suwannee S.S. v. United States, 150 Ct. Cl. 331, 279 F. 2d 874 (1960); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F. 2d 448 (1961). Those claimants were allowed to recover the amounts illegally exacted. Plaintiff’s petition in this court sought (in count II) return of the $10,000 it was required to pay upon the approval of its sale to the Israeli company. In count I plaintiff sought damages for the Commission’s earlier failure to approve the potential sale to the Danish buyer. After the decisions in the three cases referred to above, plaintiff moved for summary judgment. On June 6, 1962, we granted the motion as to count. II, gave judgment for $10,000 on the authority of the prior decisions, but denied the motion as to count I, returning the case to the trial commissioner for further proceedings. Eastport S.S. v. United States, 157 Ct. Cl. 802. We are now concerned, after a trial, with the claim for damages, as set forth in count I. The gist of that grievance is that in the spring of 1949 the Commission deliberately withheld its consent to the foreign sale and transfer of the Eastport to the Danish buyer while the agency was secretly formulating an illegal policy of selling such approvals for money, and that this conduct gives rise to an action for damages, cognizable in this court, for loss of the Danish contract which expired for lack of Commission consent in May 1949. The trial commissioner examined at length the factual underpinning of this claim and made several findings favorable to plaintiff (although he ultimately decided against recovery). These findings are vigorously contested by defendant all along the line. We do not determine these factual issues because we believe that, even if the" }, { "docid": "9511894", "title": "", "text": "the background facts presented in this opinion are not disputed by either party. The court has not utilized the materials attached to the Government’s supplemental briefing. . The Drug Enforcement Administration estimates the total value of the seized properly to be in excess of $132,349.69. In her complaint, Ms. Crocker does not allege the value of the seized property to which she claims ownership. However, in her brief in opposition to the Government's motion to dismiss, Ms. Crocker asserts that the seized property was “35,000 currency and rare coins collection and 57 U.S. government savings bonds.” Plaintiff’s Brief at 5. . Alternatively, Ms. Crocker could allege that DEA agents acted beyond the scope of their authority. This, in any event, might state a tort claim, but it would not be adjudicable here. . The Bowman court went on, however, to find that, under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), the plaintiff could not show an \"expectation of compensability” for the forfeited property, and thus could not prevail in his takings claim. . The \"other” cases cited in Eastport include A.H. Bull S.S. Co. v. United States, 123 Ct.Cl. 520, 108 F.Supp. 95 (1952) (payment of deposit under Merchant Ship Sales Act of 1946); Pan American World Airways, Inc. v. United States, 129 Ct.Cl. 53, 122 F.Supp. 682 (1954) (agency assessed fine against airline for costs to government of detaining immigrants brought to the United States on the airline’s aircraft); and Gmo, Niehaus & Co. v. United States, 139 Ct.Cl. 605, 153 F.Supp. 428 (1957) (money damages for improper governmental seizure of New York bank deposits of a foreign corporation). . Although it was Mr. Bowman's personal property rather than money that was taken from him by the Government, the court cited Eastport and Aerolíneas v. United States, 77 F.3d 1564 (Fed. Cir.1996), for the proposition that illegal exaction jurisdiction attaches where money is paid \"directly or in effect.” Bowman, 35 Fed.Cl. at 401. The court in Bowman thus found that the money was paid \"in effect.” . In Ursery, the" }, { "docid": "15147734", "title": "", "text": "sell ship' to a foreign purchaser); Seatrade Corp. v. United States, 152 Ct.Cl. 356, 360, 285 F.2d 448, 450 (1961) (same). As the Court of Claims put it in Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576, 580, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), an illegal exaction has occurred when “the Government has the citizen’s money in its pocket.” Suit can then be maintained under the Tucker Act to recover the money exacted. 127 Ct.Cl. at 513, 117 F.Supp. at 580; Pan American World Airways v. United States, 129 Ct.Cl. 53, 55, 122 F.Supp. 682, 683-84 (1954) (“the collection of money by Government officials, pursuant to an invalid regulation” is an illegal exaction and not a tort); Carriso v. United States, 106 F.2d 707, 712 (9th Cir.1939) (when a government agent construes a statute as remaining in effect after it has been repealed and uses it as a basis to collect fees, a claim to recover the fees is “founded upon a law of Congress” and “does not sound in tort”). But cf. United States v. Nederlandsch-Amerikaansche Stoomvart Maatschappij, 254 U.S. 148, 41 S.Ct. 72, 65 L.Ed. 193 (1920) (unauthorized coercion of payments by governmental agents is tortious). The Court of Federal Claims held that because no money was required by the government to be paid directly to it by Aerolí-neas or PIA, the airlines can not state a claim on the theory of illegal exaction, even if the payment requirement were contrary to law. However, such claim may lie if the government required payment to it “directly or in effect,” Eastpori, 178 Ct.Cl. at 605, 372 F.2d at 1007. The amount exacted and paid may be recovered whether the money was paid directly to the government, or was paid to others at the direction of the government to meet a governmental obligation. In Camellia Apartments, Inc. v. United States, 167 Ct.Cl. 224, 334 F.2d 667 (1964), cert. denied, 379 U.S. 963, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965), the Federal Housing Administration required the plaintiffs to pay private mortgagees a" }, { "docid": "3696521", "title": "", "text": "85 S.Ct. 654, 13 L.Ed.2d 558 (1965) (recovery of “exactions said to have been illegally imposed by federal officials (except where Congress has expressly placed jurisdiction elsewhere)”); United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825 (1915) (tax refund suit). In Eversharp, Inc. v. United States, 129 Ct.Cl. 772, 776, 125 F.Supp. 244, 247 (1954) the Court of Claims held that on the allegation that the government had illegally exacted money by enforcement of a regulation that was contrary to statute, the court had jurisdiction under the Tucker Act to render judgment against the United States for recovery of that money. Similarly in Mallow v. United States, 161 Ct.Cl. 446, 450 1963 WL 8503 (1963), the court held that the Tucker Act provided jurisdiction in the Court of Claims for recovery of money that the government illegally collected from the plaintiff as fines under void convictions and sentences. See also Suwannee S.S. Co. v. United States, 150 Ct.Cl. 331, 335-36, 279 F.2d 874, 876 (1960) (ship owner may recover payment illegally exacted as a condition of receiving permission to sell ship to a foreign purchaser); Seatrade Corp. v. United States, 152 Ct.Cl. 356, 360, 285 F.2d 448, 450 (1961) (same). As the Court of Claims put it in Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576, 580, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), an illegal exaction has occurred when “the Government has the citizen’s money in its pocket.” Suit can then be maintained under the Tucker Act to recover the money exacted. 127 Ct.Cl. at 513, 117 F.Supp. at 580; Pan American World Airways v. United States, 129 Ct.Cl. 53, 55, 122 F.Supp. 682, 683-84 (1954) (“the collection of money by Government officials, pursuant to an invalid regulation” is an illegal exaction and not a tort); Carriso v. United States, 106 F.2d 707, 712 (9th Cir.1939) (when a government agent construes a statute as remaining in effect after it has been repealed and uses it as a basis to collect fees, a claim" }, { "docid": "3696525", "title": "", "text": "States acted illegally. The court, therefore, granted summary judgment, which is a determination on the merits of the action, for the Defendant. Id., 122 F.Supp. at 686, 129 Ct.Cl. at 60. The Federal Circuit followed a similar procedure in Aerolineas Argentinas v. United States, supra, 77 F.3d at 1573-74. The Federal Circuit stated that the Plaintiffs had established jurisdiction in the Court of Federal Claims when they pled “a claim for the recovery of monies that they assert were illegally exacted.” The court, then, examined whether the regulation on which the government relied was “misinterpreted, misapplied, or invalid.” In doing so, the Federal Circuit again noted “[i]f the [Plaintiffs] fail to establish that the exaction was contrary to law, that failure does not deprive the court of jurisdiction, but serves as an adjudication on the merits.” Id., at 1574. These eases stand for the principle that the Court should hesitate before ruling that it lacks subject matter jurisdiction over a claim of illegal exaction. Nevertheless, this interpretation of Pan American and Aerolineas Argentinas does not resolve the issue completely for this ease presents the questions of whether the Plaintiffs must allege government coercion as a part of a claim for illegal exaction and, if so, whether the failure to allege this element deprives this Court of subject matter jurisdiction. b. Compulsion Whether government coercion is an essential element of a claim for illegal exaction has not been directly addressed before. To support their argument that compulsion is not required, the Plaintiffs seize language from Aerolineas Argentinas: “As the Court of Claims put it in Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576, 580, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), an illegal exaction has occurred when ‘the Government has the citizen’s money in its pocket.’ ” Aerolineas Argentinas v. United States, supra, 77 F.3d at 1574. Further, additional language from Clapp helps the Plaintiffs. “In the discussion of the question of jurisdiction, we assume that there was no legal authority in the Maritime Administration to demand or receive the [money].” Clapp v." }, { "docid": "14180129", "title": "", "text": "title 47 Jurisdiction is invoked by filing a petition as provided by section '2344 and this title. 28 U.S.C. § 2342 (1970) (emphasis added). A number of petitioners have concurrently filed suits for refund in the Court of Claims, and at least one, American Telephone & Telegraph Co., argues that that tribunal has sole jurisdiction to hear this case. See AT&T Brief at 12. We believe that we have exclusive jurisdiction to determine the validity of the final orders denying refunds under the plain wording of the above-quoted statute. However, a clear distinction must be made between that authority, which resides only in this court, and the power to actually order refunds, which is vested in both the district court and in the Court of Claims. Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954). Whether a court of appeals has the authority to itself grant refunds in a case like this is a question we need not address, for in this case that course of action is not open to us. In order to direct specific refunds, we would be required to determine the amount of the refund and the record before us is insufficient for that. We therefore are limited to adjudicating the validity of the orders denying refunds, and remanding to the Commission for further action. We reject the argument of counsel for AT&T that the FCC itself has no power to order refunds. See AT&T Brief at 12. Absent some statutory complication or administrative barrier, the power to refund fees that are unlawfully collected is implicit in the power to assess fees. Here, the IOAA has empowered the FCC to prescribe a “fair and equitable” fee for each of the services it performs, 31 U.S.C. § 483a (1970), a command which would have little meaning if the agency were unable to refund that portion'of an already-collected fee that had been determined to be unfair or inequitable. Since refunds of fees improperly assessed under the IOAA are thus “necessary” to the execution of a" }, { "docid": "21336970", "title": "", "text": "por A. v. United States, 153 F.Supp. 428, 432, 139 Ct.Cl. 605, 612 (1957); Seatrade Corp. v. United States, 285 F.2d 448, 449, 152 Ct.Cl. 356, 359 (1961); Suwannee S. S. Co. v. United States, 279 F.2d 874, 150 Ct.Cl. 331 (1960)), and we now adhere to it for plaintiff’s claim. The foreign affairs aspects of this case do not take it outside Clapp; those phases may bear upon the decision of the merits but they do not, of themselves, deprive us of the power to approach the merits in a controversy which is otherwise within our jurisdiction. Cf., e. g., Societe Anonyne des Ateliers Brillie Freres v. United States, Ct.Cl., No. 392-59, decided January 11, 1963; Seery v. United States, 127 F.Supp. 601, 130 Ct.Cl. 481 (1955); Derecktor v. United States, 128 F.Supp. 136, 129 Ct.Cl. 103 (1954), cert. granted, 348 U.S. 926, 75 S.Ct. 336, 99 L.Ed. 725, cert. dismissed, 350 U.S. 802, 76 S.Ct. 37, 100 L.Ed. 722 (1955). The second of the Government’s initial defenses concentrates on the fact that plaintiff applied to import the sugar and then paid the disputed fees (though under protest). The theory is that plaintiff, having had the advantage of the privilege of importing, must take the hair with the hide. This case differs, however, from several on which defendant relies (notably Hamilton v. Dillin, 21 Wall. 73, 90-92, 22 L.Ed. 528 (1874)) in that the importer’s contention is that it had a right under the Act of July 6, 1960, to bring in its Dominican sugar free of the fees — not a mere “privilege” to apply for discretionary permission. Asserting that unconditional right, plaintiff is not bound. by illegal administrative conditions hobbling its statutory entitlement. This would have been so even if the plaintiff had not been spurred by a strong business need to import the sugar. See Stark v. Wickard, 321 U.S. 288, 303-305, 64 S.Ct. 559, 88 L.Ed. 733 (1944). The plaintiff’s standing in that event would be no worse than that of a corporation which can avoid a threatened (but improper) stamp or excise tax by" }, { "docid": "3696522", "title": "", "text": "may recover payment illegally exacted as a condition of receiving permission to sell ship to a foreign purchaser); Seatrade Corp. v. United States, 152 Ct.Cl. 356, 360, 285 F.2d 448, 450 (1961) (same). As the Court of Claims put it in Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576, 580, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), an illegal exaction has occurred when “the Government has the citizen’s money in its pocket.” Suit can then be maintained under the Tucker Act to recover the money exacted. 127 Ct.Cl. at 513, 117 F.Supp. at 580; Pan American World Airways v. United States, 129 Ct.Cl. 53, 55, 122 F.Supp. 682, 683-84 (1954) (“the collection of money by Government officials, pursuant to an invalid regulation” is an illegal exaction and not a tort); Carriso v. United States, 106 F.2d 707, 712 (9th Cir.1939) (when a government agent construes a statute as remaining in effect after it has been repealed and uses it as a basis to collect fees, a claim to recover the fees is “founded upon a law of Congress” and “does not sound in tort”). Id. 2. Parties’ Arguments The Defendant argues that there was no illegal exaction because there was no “compulsion.” The Defendant highlights the fact that the Dole Committee, even under AO 1996-5, had a choice to disgorge the money to either the contributors or the United States. The government did not influence this choice, at all. The government did not even request that the Dole Committee turn the money over to the United States Treasury. Thus, the government was not responsible for its ultimate possession of the money. The Defendant also argues that there was no illegal exaction because the Plaintiffs voluntarily relinquished control of the money when they gave it to the Dole Committee. According to the Defendant, after the Plain tiffs gave away the money, they lost any interest in its return to them. The Plaintiffs present two arguments in response. First, the Plaintiffs question whether the Defendant’s argument actually implicates this court’s subject matter jurisdiction. Second," }, { "docid": "8792562", "title": "", "text": "these purchasers for the CCC’s cotton. In a series of decisions growing out of the sale of government-owned vessels after World War II, this court held that buyers who had been charged more than the prices set by Congress could recover the excess, even though they had entered into contracts to pay those higher sums. A. H. Bull S. S. Co. v. United States, 108 F.Supp. 95, 123 Ct.Cl. 520 (1952); Southeastern Oil Florida, Inc. v. United States, 119 F.Supp. 731, 732-734, 127 Ct.Cl. 409, 411-412, 414 (1953), cert. denied, 348 U.S. 834, 75 S.Ct. 56, 99 L.Ed. 658 (1954); Clapp v. United States, 117 F.Supp. 576, 577-578, 581-582, 127 Ct.Cl. 505, 508-509, 513-515, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954); Nautilus Shipping Corp. v. United States, 158 F.Supp. 353, 354-355, 141 Ct.Cl. 391, 394-395 (1958); Sprague S. S. Co. v. United States, 172 F.Supp. 674, 675-676, 145 Ct.Cl. 642, 645-647 (1959); Suwanee S. S. Co. v. United States, 279 F.2d 874, 877, 150 Ct.Cl. 331, 333 (1960). The holding was that the parties could not, by agreement, change the terms prescribed by the statute for the sale of the ships. This was said to be so even where the purchaser had freely agreed to pay the greater amount, and even though the maritime agencies could have withheld the ships from sale. Judgments were entered for the excess. The Supreme Court had earlier been faced with a similar problem when a ven-dee of federal land paid considerably more than the statutory price for some acreage. The Court ruled that the overpayment was voluntary and the payer had no claim, cognizable in this court, for the extra. United States v. Edmondston, 181 U.S. 500, 21 S.Ct. 718, 45 L.Ed. 971 (1901). In the ship-sale cases, we distinguished Edmondston by stressing the difference in the underlying legislation. The maritime statutes, we thought, embodied the Congressional wish that “the Government’s surplus ships should be sold at prices, uniform for all purchasers, and ascertainable by mathematical application of the statutory formula, properly interpreted”; this Congressional purpose “was strong enough" }, { "docid": "12911721", "title": "", "text": "to foreign purchasers, the Commission and the plaintiff later agreed to the substitution of two Victory ships. There is no issue in this case as to those ships, nor as to the ship which the plaintiff bought from the Commission at the time of the sale to the Israeli purchaser. As to the condition inserted in the Commission’s permission to sell the first three German ships to foreign purchasers, that if, upon audit of the plaintiff’s cost of conversion of the first German ship, it should be found that the cost was less than $300,000, the plaintiff should pay the Commission the difference, the Commission required the plaintiff to pay $16,308.82. The amounts of the cash payments to the Commission in connection with the transfers were, then, $450,000, $16,308.82, and $50,000, a total of $516,308.82. The plaintiff says that this ease is, in all essential respects, like the case of Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, certiorari denied 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658, and the case of Suwannee Steamship Co. v. United States, Ct.Cl. 279 F.2d 874, decided June 8, 1960. In those cases this court held that the Maritime Commission’s power to grant, or to deny, permission to an owner of a ship to sell it to a foreign purchaser, was intended to be exercised with due consideration of this country’s defense position, its foreign policy and its economic welfare; that if the granting of permission would have been detrimental to any of these interests, it would have been highly improper to have granted the permission, with or without a money consideration; that if the granting of permission would not have been detrimental to those interests, the exaction of a money payment for the permission had no relevancy to the transaction. We have given consideration to the Government’s contention that the money in question was not required to be paid for the permission to sell the ships, but was for a number of other considerations, or possible considerations. The difficulty with the Government’s argument is that the Commission said in so" }, { "docid": "21536075", "title": "", "text": "motion to dismiss. . Defendant has submitted to Plaintiff's factual allegations for purposes of its motion to dismiss. . In light of this established component of the Court's jurisdiction, Defendant’s assertion based on Noel v. United States, 16 Cl.Ct. 166, 170 (1989) that allegations of improper Government action cause the matter to sound in tort is similarly unfounded. See Aerolineas, 77 F.3d at 1571 (citing Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 581 (1954), cert. denied 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954) (declining to consider the wrongful exaction of money under the Shipping Act a tort)). . Moreover, sums deposited from improperly forfeited properly may be returned pursuant to the general appropriation in 31 U.S.C. § 1322(b)(2) (1988), which provides, \"(b) ... necessary amounts are appropriated to the Secretary of the Treasury to make payments from— \"the United States Government account “Refund of Moneys Erroneously Received and Covered\" and other collections erroneously deposited that are not properly chargeable to another appropriation.” 31 U.S.C. § 1322(b)(2) (1988) (emphasis added). See Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 90-93, 113 S.Ct. 554, 560-62, 121 L.Ed.2d 474 (1992). . This case is distinguishable from Shelden v. United States, 7 F.3d 1022 (Fed.Cir.1993) where a court's judgment of in personam forfeiture of certain real property was held to result in a taking of plaintiff’s mortgage lien. In Shelden, no collateral review of the district court’s determination was necessary to proceed to a takings analysis because the district court had not made a deteimination forfeiting the security interest alleged to have been taken. Id. The Federal Circuit accepted the district court forfeiture as a given. Id. In the case at bar, the forfeiture judgment relates to the very same interest alleged to have been taken. . In the instant case, unlike in $405,089.23 U.S. Currency, the civil forfeiture complaint was filed prior to the criminal indictment. However, so long as two separate punishments are meted out for the same offense, the order of indictments or judgments is not critical. Compare $405,089.23 U.S. Currency, 33" }, { "docid": "17231575", "title": "", "text": "in the vicinity of Washington, D.C. We agree with the Court of Federal Claims that Air Pegasus failed to assert a cognizable property interest for purposes of the Fifth Amendment. However, we reach that conclusion in a slightly different manner. B. As an initial matter, a claimant seeking compensation from the government for an alleged taking of private property must, at a minimum, assert that its property interest was actually taken by the government action. See United States v. Gen. Motors Corp., 323 U.S. 373, 379, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (“[I]t has been held that the compensation to be paid is the value of the interest taken.”); United States v. Miller, 317 U.S. 369, 376, 63 S. Ct. 276, 87 L.Ed. 336 (1943) (“As respects other property of the owner consisting of separate tracts adjoining that affected by the taking, the Constitution has never been construed as requiring payment of consequential damages[.]”); Campbell v. United States, 266 U.S. 368, 371, 45 S.Ct. 115, 69 L.Ed. 328 (1924) (“[I]f the land taken from plaintiff had belonged to another, or if it had not been deemed part and parcel of his estate, he would not have been entitled to anything on account of the diminution in value of his estate. It is only because of the taking of a part of his land that he became entitled to any damages resulting to the rest.”); Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1581 (Fed.Cir.1990) (“It is a well settled principle of Fifth Amendment taking law ... that the measure of just compensation is the fair value of what was taken, and not the consequential damages the owner suffers as a result of the taking.”); Klein v. United States, 179 Ct.Cl. 910, 375 F.2d 825, 829 (1967) (“It is settled law that ... compensation under the Fifth Amendment may be recovered only for property taken and not for incidental or consequential losses, the rationale being that the sovereign need only pay for what it actually takes rather than for all that the owner has lost.”). In this case," }, { "docid": "22625286", "title": "", "text": "its close without Commission action, plaintiff made efforts to have its request disposed of within the time limit, and also obtained, as a last resort, a two-week extension from the Danish purchaser (from May 11 to May 25, 1949). The extended deadline passed without affirmative action by the Commission and the Danish firm canceled the contract. Months later, at the end of December 1949, after a sharp fall in the world market price, plaintiff contracted to sell the Eastport to an Israeli corporation for the lower price of $375,000 (and also subject to Commission approval of the foreign transfer). In March 1950 the Commission approved this application upon payment by plaintiff of “the sum of $10,000 as consideration for the release of the * * * Eastport from United States flag operation.” This condition was imposed under a policy, first formally adopted by the Commission in June 1949, of requiring owners of ex-German vessels to pay a monetary sum (differing with the individual ship) for the release of the vessels from the requirement of restricted operation. In a series of cases this court has held that monetary conditions, such as these, for permission to transfer a vessel are unlawful and beyond the Commission’s authority under Section 9 of the Shipping Act. Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576 (1954), cert. denied, 348 U.S. 834; Suwannee S.S. v. United States, 150 Ct. Cl. 331, 279 F. 2d 874 (1960); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F. 2d 448 (1961). Those claimants were allowed to recover the amounts illegally exacted. Plaintiff’s petition in this court sought (in count II) return of the $10,000 it was required to pay upon the approval of its sale to the Israeli company. In count I plaintiff sought damages for the Commission’s earlier failure to approve the potential sale to the Danish buyer. After the decisions in the three cases referred to above, plaintiff moved for summary judgment. On June 6, 1962, we granted the motion as to count. II, gave judgment for $10,000 on the authority of" }, { "docid": "8851396", "title": "", "text": "to exceed $20,000 at the time of their effective elimination by defendant. To the foregoing sum must be added the depreciated value of four pound nets, $2,400, and of the poles for these nets, $840. Nothing is allowed for one net and one set of poles for which plaintiffs found use elsewhere. The foregoing determination of just compensation for the taking of plaintiffs’ property is, under the facts and circumstances of the case, necessarily in the nature of a jury verdict. That such a method of arriving at just compensation is appropriate in such cases in this court is so well established as not to require emphasis. “Where, for any reason, property has no market, resort must be had to other data to ascertain its value, * * * [this], involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety.” United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336; American-Hawaiian Steamship Company v. United States, 124 F.Supp. 378, 381, 129 Ct.Cl. 365, 369. “The ascertainment of value is not controlled by rigid rules or artificial formulae; what is required is a ‘reasonable judgment having its basis in a proper consideration of all relevant facts. [Simpson v. Shephard] Minnesota Rate Cases, 230 U.S. 352, 434 [33 S.Ct. 729, 57 L.Ed. 1511]’”; Western Contracting Corporation v. United States, Ct.Cl. No. 344-55, decided December 3, 1958. It is concluded for the reasons stated in the opinion and upon the findings of fact that plaintiffs have an equitable but not a legal claim against the United States for $23,240 and it is recommended that this should be reported to the Senate of the United States, pursuant to S.Res. 308, 83d Congress, 2d Session. . If the court should think interest is allowable as a part of just compensation, it should be on the value of two sets of poles and nets from December 14, 1943, and on two other sets of nets and poles from June 1, 1944, and on three-fifths of the value of the fishing rights between December 14," }, { "docid": "21536074", "title": "", "text": "ORDERED that: (1) Defendant’s Motion to Dismiss is GRANTED; (2) Defendant’s motion for a stay is DENIED. Plaintiffs motion for summary judgment shall be filed, by leave of court, and DENIED, for the reasons set forth herein; (3) Final judgment shall be entered in favor of Defendant dismissing the complaint; (4) No costs shall be assessed. . The Double Jeopardy Clause provides: \"... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, ...” U.S. Const, amend. V. . The Takings Clause provides: \"... nor shall private property be taken for public use without just compensation.” U.S. Const, amend. V. . Attached to Plaintiff’s Complaint were the civil forfeiture complaints, which alleged that the property at issue was forfeitable under 21 U.S.C. § 881(a)(6), as well as a docket sheet indicating the entry of judgment. The actual summary judgment order was not included. . Plaintiff initially asserted due process violations with respect to the forfeitures as well, but withdrew them in his response to the motion to dismiss. . Defendant has submitted to Plaintiff's factual allegations for purposes of its motion to dismiss. . In light of this established component of the Court's jurisdiction, Defendant’s assertion based on Noel v. United States, 16 Cl.Ct. 166, 170 (1989) that allegations of improper Government action cause the matter to sound in tort is similarly unfounded. See Aerolineas, 77 F.3d at 1571 (citing Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 581 (1954), cert. denied 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954) (declining to consider the wrongful exaction of money under the Shipping Act a tort)). . Moreover, sums deposited from improperly forfeited properly may be returned pursuant to the general appropriation in 31 U.S.C. § 1322(b)(2) (1988), which provides, \"(b) ... necessary amounts are appropriated to the Secretary of the Treasury to make payments from— \"the United States Government account “Refund of Moneys Erroneously Received and Covered\" and other collections erroneously deposited that are not properly chargeable to another appropriation.” 31 U.S.C. § 1322(b)(2) (1988) (emphasis added)." }, { "docid": "21336969", "title": "", "text": "35 S.Ct. 459, 59 L.Ed. 813 (1915)), but there have been other instances (Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Compagnie General Transatlantique v. United States, 21 F.2d 465 (S.D.N.Y. 1927), aff’d, 26 F.2d 195 (C.A. 2, 1928); Carriso, Inc. v. United States, 106 F.2d 707 (C.A. 9, 1939)). Such a claim is not barred as sounding in tort; nor need there be any specific consent-to-suit apart from the Tucker Act (Aycock-Lindsey Corp. v. United States, 171 F.2d 518, 520-521 (C.A. 5, 1948)). The precise issue was thoroughly canvassed in Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), and the court ruled that such a demand does fall within 28 U.S.C. § 1491. Clapp has been followed since (Eversharp, Inc. v. United States, 125 F.Supp. 244, 247, 129 Ct.Cl. 772, 775-776 (1954); Pan American World Airways, Inc. v. United States, 122 F.Supp. 682, 683, 129 Ct.Cl. 53, 55-56 (1954); Gmo. Niehaus & Co., C. por A. v. United States, 153 F.Supp. 428, 432, 139 Ct.Cl. 605, 612 (1957); Seatrade Corp. v. United States, 285 F.2d 448, 449, 152 Ct.Cl. 356, 359 (1961); Suwannee S. S. Co. v. United States, 279 F.2d 874, 150 Ct.Cl. 331 (1960)), and we now adhere to it for plaintiff’s claim. The foreign affairs aspects of this case do not take it outside Clapp; those phases may bear upon the decision of the merits but they do not, of themselves, deprive us of the power to approach the merits in a controversy which is otherwise within our jurisdiction. Cf., e. g., Societe Anonyne des Ateliers Brillie Freres v. United States, Ct.Cl., No. 392-59, decided January 11, 1963; Seery v. United States, 127 F.Supp. 601, 130 Ct.Cl. 481 (1955); Derecktor v. United States, 128 F.Supp. 136, 129 Ct.Cl. 103 (1954), cert. granted, 348 U.S. 926, 75 S.Ct. 336, 99 L.Ed. 725, cert. dismissed, 350 U.S. 802, 76 S.Ct. 37, 100 L.Ed. 722 (1955). The second of the Government’s initial defenses concentrates on the fact that plaintiff" }, { "docid": "21336968", "title": "", "text": "is estopped to recover the fees because it chose to import the non-quota sugar and is therefore bound to accept the conditions imposed on that importation. Neither half of the argument persuades us. Congress has given this court power to hear claims against the United States founded upon “any Act of Congress.” 28 U.S.C. § 1491. Plaintiff urges that under the Act of July 6, 1960, it was entitled to import non-quota Dominican sugar into this country without payment of any monetary exaction such as the fees levied here. The claim is, therefore, squarely bottomed on an Act of Congress and is directly covered by our general jurisdictional statute. Under that provision, suit can be brought in this court to recover exactions said to have been illegally imposed by federal officials (except where Congress has expressly placed jurisdiction elsewhere). Tax refund suits are the most common (see, e. g., United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825 (1915); United States v. Hvoslef, 237 U.S. 1, 9-11, 35 S.Ct. 459, 59 L.Ed. 813 (1915)), but there have been other instances (Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Compagnie General Transatlantique v. United States, 21 F.2d 465 (S.D.N.Y. 1927), aff’d, 26 F.2d 195 (C.A. 2, 1928); Carriso, Inc. v. United States, 106 F.2d 707 (C.A. 9, 1939)). Such a claim is not barred as sounding in tort; nor need there be any specific consent-to-suit apart from the Tucker Act (Aycock-Lindsey Corp. v. United States, 171 F.2d 518, 520-521 (C.A. 5, 1948)). The precise issue was thoroughly canvassed in Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), and the court ruled that such a demand does fall within 28 U.S.C. § 1491. Clapp has been followed since (Eversharp, Inc. v. United States, 125 F.Supp. 244, 247, 129 Ct.Cl. 772, 775-776 (1954); Pan American World Airways, Inc. v. United States, 122 F.Supp. 682, 683, 129 Ct.Cl. 53, 55-56 (1954); Gmo. Niehaus & Co., C." }, { "docid": "15066370", "title": "", "text": "Corporation and the unproved title of National Petroleum Transport Corporation were validly or fraudulently acquired depend upon the truth or falsity of numerous representations made by the said companies to the Maritime Commission. The record is devoid of any proof of the truth of those representations.” In its “Counter-Statement of Facts”, the Government summarizes each of the transactions between the plaintiff, and its predecessors in title, and Maritime, and concludes several of these summaries with a statement such as “Whether the representations of plaintiff were true or fraudulent is not reflected by the record in this case.” We do not understand the Government’s reason for injecting these numerous intimations of possible fraud. It filed an answer which contained no plea or intimation of fraud. It has filed affidavits of officials of Maritime containing no allegations or intimations of fraud. Can it be the Government’s position that no case is ever ripe for decision on a plaintiff’s motion for summary judgment, since there lurks in every case at least one issue of fact, i. e., whether the plaintiff is a cheat and a scoundrel? We think the case is in order for decision on the plaintiff’s motion. As to the legal merits o£¿ the plaintiff’s claim, the case is, in all material respects, like the case of Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, certiorari denied 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658. In that case this court held that the Maritime officials had no authority to exact a payment of $7,500 from a ship owner as a condition to his receiving permission to sell his ship to a foreign purchaser. The Government urges that Maritime had the power to deny the plaintiff permission to make the desired transfer, and had, under section 41 of the Shipping Act of September 7, 1916, 46 U.S.C.A. § 839, complete freedom to impose conditions upon any permission granted. Section 41 says: “Whenever by section 808 * * of this title the approval of the Commission (Administration) is required to render any act or transaction lawful, such approval may be" }, { "docid": "15147733", "title": "", "text": "been illegally imposed by federal officials (except where Congress has expressly placed jurisdiction elsewhere)”); United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825 (1915) (tax refund suit). In Ever sharp, Inc. v. United States, 129 Ct.Cl. 772, 776, 125 F.Supp. 244, 247 (1954) the Court of Claims held that on the allegation that the government had illegally exacted money by enforcement of a regulation that was contrary to statute, the court had jurisdiction under the Tucker Act to render judgment against the United States for recovery of that money. Similarly in Mallow v. United States, 161 Ct.Cl. 446, 450 1963 WL 8503 (1963), the court held that the Tucker Act provided jurisdiction in the Court of Claims for recovery of money that the government illegally collected from the plaintiff as fines under void convictions and sentences. See also Suwannee S.S. Co. v. United States, 150 Ct.Cl. 331, 335-36, 279 F.2d 874, 876 (1960) (ship owner may recover payment illegally exacted as a condition of receiving permission to sell ship' to a foreign purchaser); Seatrade Corp. v. United States, 152 Ct.Cl. 356, 360, 285 F.2d 448, 450 (1961) (same). As the Court of Claims put it in Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576, 580, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), an illegal exaction has occurred when “the Government has the citizen’s money in its pocket.” Suit can then be maintained under the Tucker Act to recover the money exacted. 127 Ct.Cl. at 513, 117 F.Supp. at 580; Pan American World Airways v. United States, 129 Ct.Cl. 53, 55, 122 F.Supp. 682, 683-84 (1954) (“the collection of money by Government officials, pursuant to an invalid regulation” is an illegal exaction and not a tort); Carriso v. United States, 106 F.2d 707, 712 (9th Cir.1939) (when a government agent construes a statute as remaining in effect after it has been repealed and uses it as a basis to collect fees, a claim to recover the fees is “founded upon a law of Congress” and" }, { "docid": "3696526", "title": "", "text": "resolve the issue completely for this ease presents the questions of whether the Plaintiffs must allege government coercion as a part of a claim for illegal exaction and, if so, whether the failure to allege this element deprives this Court of subject matter jurisdiction. b. Compulsion Whether government coercion is an essential element of a claim for illegal exaction has not been directly addressed before. To support their argument that compulsion is not required, the Plaintiffs seize language from Aerolineas Argentinas: “As the Court of Claims put it in Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576, 580, cert. denied, 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658 (1954), an illegal exaction has occurred when ‘the Government has the citizen’s money in its pocket.’ ” Aerolineas Argentinas v. United States, supra, 77 F.3d at 1574. Further, additional language from Clapp helps the Plaintiffs. “In the discussion of the question of jurisdiction, we assume that there was no legal authority in the Maritime Administration to demand or receive the [money].” Clapp v. United States, supra, 117 F.Supp. at 578, 127 Ct.Cl. at 509 (emphasis added). The Defendant maintains that in every case where a Plaintiff stated a cause of action for “illegal exaction,” the government coerced the payment. For example, in Aerolineas Argentinas, the Immigration and Naturalization Services “required the airlines to pay to house, sustain and guard aliens who, having arrived in the United States on plaintiff’s airlines without entry documents, sought political asylum.” 'Aerolineas Argentinas v. United States, supra, 77 F.3d at 1568 (emphasis added). The United States reads Aerolineas Argentinas as determining whether the exaction was “illegal,” not determining whether there was an “exaction” at all. The Defendant concludes that because all prior cases included “compulsion,” “compulsion” is required. The Court disagrees with the reasoning of the Defendant. This Court rules, under the facts of this case, that government “coercion” is not required. Four reasons support this holding. First, Aerolíneas Argentinas establishes that “illegal exaction” is not strictly construed. For example, the “illegal exaction” was not paid to the government. The Federal Circuit ruled" } ]

[ { "docid": "5242369", "title": "", "text": "again, elaborate conditions dependent upon good faith compliance are sometimes insufficient when a defendant’s criminal history provides no basis for believing good faith will be forthcoming. See U.S. v. Tortora, 922 F.2d 880, 886-87 (1st Cir.1990). Regarding a defendant’s good faith, this court has stated: The quintessential factor is whether the defendant will do as the court directs. There are a variety of conditions that could reduce potential danger and flight if a defendant would abide by them. Examples include home confinement, electronic monitoring, curfews, pretrial services or family supervision, drug testing and treatment, and employment or educational mandates. However, none of these conditions will suffice to protect the community or minimize the flight risk if a defendant’s past behavior amply demonstrates that he will not honor them. In other words, past behavior best predicts future behavior and whether the court can rely on a defendant’s good faith promises. Therefore, an analysis of how a defendant has honored his criminal justice promises in the past is a critical component of the bail analysis. U.S. v. Barnett, No. 5:03-CR-243, 2003 WL 22143710, *12 (N.D.N.Y. Sept. 17, 2003). III. Bail Decision As to both Wilson and Vasconcellos, the government based its detention motion on the Bail Reform Act’s rebuttable presumption that no condition or combination of conditions exist that will ensure the defendants’ appearance or the safety of the community since they have been charged with a drug offense penalized by a sentence exceeding ten years. See 18 U.S.C. § 3142(e). Because both have been indicted, a grand jury has already found probable cause sufficient to trigger the presumption. See U.S. v. Rodriguez, 950 F.2d at 87(citing U.S. v. Contreras, 776 F.2d at 55). Furthermore, the indictment constitutes probable cause to believe that both defendants, consistent with principles of conspiratorial liability, are responsible for the distribution of at least five kilograms of powder cocaine and fifty grams of crack cocaine. Accordingly, if convicted, each defendant confronts a potential like sentence and a mandatory minimum ten years. Regarding the drug charges and quantities, the evidence is strong because it is premised on court-authorized" } ]

[ { "docid": "10967764", "title": "", "text": "732 F.Supp. 255 (D.Mass.1990). After making a finding that possession by a felon of a fully loaded handgun is a crime of violence for purposes of 18 U.S.C. § 3142(f)(1)(A), the Magistrate proceeded to consider the factors for consideration in determining whether release or detention is appropriate: (g) Factors to be considered. The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning— (1) the nature and the circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug and alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of a sentence ...; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.... 18 U.S.C. § 3142(g). The Magistrate Judge found that consideration of all four factors weighed in favor of detention. As to the first factor, the nature and circumstances of the offense, the Magistrate Judge found that the defendant was a convicted felon in possession of a semi-automatic pistol and thirteen rounds of ammunition. As to the second factor, the weight of evidence, the Magistrate Judge noted that the police found the pistol in defendant’s waistband. As to the third factor, the defendant’s history and characteristics, according to the Magistrate Judge, this defendant had a history of “drug-related, robbery, armed robbery, CDW felony, Bail Reform Act convictions,” and from 1976 through May 1993 was convicted 11 times on various charges. Finally, as" }, { "docid": "5122626", "title": "", "text": "United States v. Doe, 49 F.3d 859, 867 (2d Cir.1995) (finding that district court did not abuse its discretion in concluding that age favored transfer where juvenile committed robbery at age 16/6 and extortion at age 17, and explaining that “because Doe had continued to engage in acts involving [his gang] up to just a year short of his eighteenth birthday, the conduct with which he was charged did not occur either when he was very young or as an isolated indiscretion”); United States v. H.V.T., No. 96-cr-244 (RSP)(GJD), 1997 WL 610767, at *3 (N.D.N.Y. Oct. 1, 1997) (“H.V.T. was almost 18 years old at the time of the conduct with which he is charged. Thus, the conduct did not occur when H.V.T. was very young, and age is a factor favoring transfer.”). In this case, the defendant, born on May 21, 1992 (Gov’t Ex. 1), was 17 years, 8 months old at the time of the alleged murders and 18 years, 6 months old at the time of the hearing. The Court finds that the defendant’s current age, which legally renders him an adult, and the fact that he was only four months shy of his eighteenth birthday at the time of the alleged murders, both weigh strongly in favor of transfer. The Court also finds that the defendant’s social background weighs in favor of transfer, albeit less so than his age. The defendant’s family, despite being “exceedingly poor” and sometimes going without food, “presents a stable home” with a “loving and supportive” environment.(Def.’s Mem. of Law at 2). The defendant reports being “treated well” by his mother (Dr. Drob Report at 1), and, consistent with this account, the defendant’s mother has attended all of the defendant’s court appearances, including his transfer hearing. Furthermore, there is no evidence indicating that either the alleged prior gang activity or the heinous criminal behavior alleged in this case was condoned or accepted in the defendant’s household. Nevertheless, the record demonstrates that the defendant’s life outside of the home was considerably less stable. A probation report written in connection with the defendant’s 2006" }, { "docid": "5035069", "title": "", "text": "given up marijuana while on probation. (Id. at 3.) Accordingly, despite the defendant’s stable, loving home life and his mother’s efforts to prevent him from engaging in criminal activity, the defendant nevertheless allegedly chose to join a gang. See United States v. H.V.T., 96-CR-244 (RSP/GJD), 1997 WL 610767, at *4, 1997 U.S. Dist. LEXIS 15220, at *11 (N.D.N.Y Oct. 1, 1997) (“It appears that H.V.T. had a family structure available to him in his older brothers and aunts and uncles in the United States. Instead of taking advantage of the support that structure offered, H.V.T. quit school and left home.... It also appears that H.V.T. became a member of a gang.”) Although defendant indicated to Dr. Drob that he would like to remove himself from past gang associations, take college courses, and develop a career, the Court finds that the defendant’s background indicates that it is highly unlikely that he would be able to rehabilitate himself in the short period of time before he would have to be released from juvenile custody if he were convicted on the offenses charged. In sum, the defendant’s age of 16 at the time of the crime weighs against transfer, but the defendant’s current age and social background weigh in favor of transfer. Accordingly, this factor weighs slightly in favor of transfer. See, e.g., United States v. Juvenile (I.H., Jr.), 1 F.Supp.2d 509, 518 (D.Vi.1998) (“I.H.’s age at the time of the offenses [16 at time of carjacking and rape; 17 at time of robbery] and at the time of transfer [19] auger in favor of transferring him for prosecution as an adult. It must also be considered that his having come from a stable home and yet having done these terrible acts likewise weigh in favor of transfer.”). B. Nature of the Offense Alleged As an initial matter, as noted supra, a district court should not undertake an examination of the strength of the government’s evidence in evaluating a transfer motion, but instead should “assume that, for the purposes of the transfer hearing, the juvenile committed the offense charged in the Information.” Nelson" }, { "docid": "22413670", "title": "", "text": "release decision. See Provenzano, 605 F.2d at 193; accord United States v. Stanley, 152 U.S.App.D.C. 170, 179, 469 F.2d 576, 584 (1972) (District of Columbia statute). Our independent analysis finds clear and convincing evidence that Delker poses a danger to the community within the meaning of the Bail Reform Act of 1984. He is charged with several serious offenses; the indictment alleges that he was part of a group that dominated a union local through the systematic use of force, violence, vandalism, and physical and economic intimidation. The Hobbs Act count results from Delker’s alleged beating of and the use of a death threat in an attempt to extort money from a painting contractor. The Act provides for consideration of the nature and seriousness of the offense charged with specific emphasis upon crimes of violence. See S.Rep. No. 225, 98th Cong., 1st Sess. at 23, reprinted in 1984 U.S.Code Cong. & Ad.News at 26 (Supp. 9A). This first factor thus supports the district court’s detention decision. Next, despite appellant’s protestation that he is not a “career offender,” the record reveals that Delker has two Pennsylvania convictions for assault and battery in 1961, and a Pennsylvania conviction for robbery by assault and force in 1964. He also has a 1975 arrest for assault and resisting arrest, which was subsequently reduced to disorderly conduct at the time of a guilty plea. In 1977, Delker was arrested on criminal mischief charges. The Act specifically provides for consideration of prior arrests in the release decision, S.Rep. No. 225, 98th Cong., 1st Sess. at 23 n. 66, reprinted in 1984 U.S.Code Cong. & Ad. News at 26 n. 66 (Supp. 9A), and the legislative history of the Act records Congress’ belief that there is a “significant correlation” between prior criminal history and pretrial rearrest. Id. at n. 68. More importantly, the record reveals evidence that after appellant learned of the ongoing government investigation of his activities, he threatened and intimidated several alleged victims and potential witnesses. The legislative history of the Act repeatedly emphasizes that defendants who have threatened witnesses pose a significant danger and" }, { "docid": "22413664", "title": "", "text": "safety of the community, § 3142(g). As Delker concedes, the government made virtually the same arguments in the district court as it had made before the magistrate. While the paucity of court decisions construing the new Act may have contributed some uncertainty regarding the interstices of the statute, this seems no different from the situation whenever any new law takes effect. There was no due process violation in this regard. C. Appellant also challenges the district court’s conclusion that no conditions regarding his release would reasonably assure the safety of the community. In ascertaining whether to detain or release a defendant, the judicial officer is directed by the statute to consider the available information concerning several factors, including: (1) the nature and seriousness of the offense charged; (2) the weight of evidence against the defendant; (3) the defendant’s character, physical and mental condition, family and community ties, past conduct, history relating to drug or alcohol abuse, and criminal history; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. BRA § 3142(g). The legislative history posits that the characteristics that will support pretrial detention may vary considerably in each ease, and thus Congress “has chosen to leave the resolution of this question [what kinds of information are a sufficient basis for the denial of release] to the sound discretion of the court’s acting on a case-by-ease basis.” S.Rep. No. 225, 98th Cong., 1st Sess. at 18-19 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News' at 21-22 (Supp. 9A). Nevertheless, the facts employed to support a detention decision must “be supported by clear and convincing evidence.” BRA § 3142(f). “Thus, for example, if the criminal history of the defendant is one of the factors to be relied upon, clear evidence such as record of arrest and conviction should be presented ... [and] if the dangerous nature of the current offense is to be a basis of detention, then there should be evidence of the specific elements or circumstances of the offense, such as possession or use of a" }, { "docid": "960600", "title": "", "text": "was filed in Janu ary 1985. An indictment was issued the next month. Therefore, I must reject defendant’s position. Under the Act, the government must demonstrate to my satisfaction by clear and convincing evidence that, if released pending trial defendant Askari would pose a threat to members of his community. I conclude that the government has met that burden with respect to defendant Askari. I therefore make the following conclusions of law. CONCLUSIONS OF LAW 1. The Bail Reform Act of 1984, 18 U.S.C. § 3142(e) expressly provides that the court shall order the detention of a defendant prior to trial if, after a hearing, the court finds “that no condition or combination of conditions will reasonably assure ... the safety of any other person and the community ... ”. 2. Under the Bail Reform Act, there must be a sufficient evidentiary basis for the court’s determination that pretrial detention is necessary. In making my determination I am required to consider: (1) the nature and circumstances of the offense, including whether the offense is a crime of violence; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, appearance record, and whether at the time of the offense he was on probation, parole, or other type of release pending trial, sentencing or appeal; and (4) the nature and seriousness of any alleged danger to any person or the community that was posed by the defendant’s release. 18 U.S.C. § 3142(g). 3. I find that there exists probable cause to believe that defendant Askari committed a felony after having been convicted twice of committing a “crime of violence” within the meaning of 18 U.S.C. § 3156(a)(4), and therefore, the government is properly proceeding under § 3142(f)(1)(D). 4. The indictment charges defendant Askari with possession of a firearm by a convicted felon in violation of Title 18, United States Code, Appendix, Section 1202(a)(1). I" }, { "docid": "19423927", "title": "", "text": "at least two serious felonies: possession of cocaine with intent to distribute, and possession of a firearm by a felon. Even more significantly, both convictions parallel the current charges, suggesting that Taylor was not previously deterred by his prior, lengthy sentences. But, on the other hand, Taylor's prior convictions are dated. His conviction for possession with intent to distribute occurred almost a quarter century ago, and his conviction for possession of a firearm by felon occurred well over a decade ago. Furthermore, the government has not presented evidence that the underlying conduct giving rise to those convictions involved violence. In the related context of determining when the presumption in favor of detention applies, the D.C. Circuit declined to treat felon-in-possession charges, standing alone, as crimes of violence. See United States v. Singleton , 182 F.3d 7, 13-14 (D.C. Cir. 1999). To be sure, the Court of Appeals applied a \"categorical approach\" in reaching that conclusion, while the present question necessarily requires case-by-case consideration. But, given the lack of evidence that Taylor, in fact, engaged in any act of violence, the Court cannot conclude that his criminal history discloses a propensity for violence. In sum, Taylor's criminal history involves the same type of conduct at issue in the present case, and that history involves both drug trafficking and the illegal possession of a firearm. This, then, at least raises the specter that he might, if released, commit just the type of offense that Congress concluded poses a unique danger to the community. See 18 U.S.C. § 3142(e)(3)(B) (identifying an offense under 18 U.S.C. § 924(c) as giving rise to a presumption of dangerousness). But, because Taylor's convictions are dated, they did not involve acts of violence, and his criminal history is not extensive, the Court will not assign significant weight to this factor. The Court, accordingly, finds that the third factor does not tip decidedly in either direction. 4. Nature and Seriousness of the Danger to Any Person or the Community that Would Be Posed by the Defendant's Release The final factor the Court must consider is the \"nature and seriousness" }, { "docid": "22215609", "title": "", "text": "monitoring, house arrest and interactions limited to family would not “alleviate [Amato’s] danger to the community”). In this case, as in Rodriguez, electronic monitoring, home detention and assurances by Roman’s fiancee that he will comply with the requirements of pretrial release are insufficient in the face of strong evidence that Roman presents both a danger to the community and a flight risk. First, the nature of the crime with which Roman has been charged — conspiracy to commit armed robbery of a drug-dealer— weighs heavily against release. Second, the evidence against Roman is strong. Loaded guns, as well as fake police badges and handcuffs, were found in the car in which Roman was a passenger. The district court found that it was “more likely than not that [Roman] would have been one of the perpetrators to brandish a weapon and impersonate police officers .In addition to the crime charged here, Roman has twice been convicted of weapon possession — one felony conviction, and one misdemeanor conviction. We find the district court committed clear error in failing to credit the government’s proffer with respect to Roman’s dangerousness. In addition, Roman presents a substantial flight risk. Although Roman is a U.S. citizen, whose siblings and fiancee signed as suretors, we believe the government met its burden of proving flight risk. Notably, Roman violated the conditions of a prior release imposed as part of the sentence for his past convictions. Although Roman contends that the conditions of his probation in that case were not as stringent as those here, we remain unpersuaded. While we recognize that for those individuals who have offered security on Roman’s behalf this is a large amount of money, we find that it is not sufficient to guarantee his presence at trial. We therefore reverse the grant of pre-trial release to Roman. II. Rios The district court found that the government failed to meet its burden of demonstrating that Rios was a danger to the community or a flight risk given his U.S. citizenship, his lack of a criminal history, his strong ties to his suretors, the fact that" }, { "docid": "23295755", "title": "", "text": "Orena faction and one who readily furthers its criminal objectives through violence. Moreover, while Amato may argue that he is harmless in comparison to Orena, that argument merely underlines Orena’s criminal and violent propensities but is hardly persuasive of Amato’s pacific nature. We therefore conclude that the detention period contemplated does not, in light of the causes of delay and the dangerousness of Amato, violate due process. The only remaining question, therefore, is whether the conditions of bail mitigate the threat that Amato represents to the community. Section 3142(g) sets forth the factors determining whether “there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(g). These factors include the nature and circumstances of the offense charged, the weight of the evidence against the person, the history and characteristics of the person, and \"the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). Where the court concludes by clear and convincing evidence that “no condition or combination of conditions will reasonably assure ... the safety of any other person and the community,” detention shall be ordered. 18 U.S.C. § 3142(e); see also 18 U.S.C. § 3142(f). We do not agree that the bail conditions set by the district court eliminate the danger to the community or are superior to detention for purposes of the Bail Reform Act. See United States v. Rodriguez, 950 F.2d 85, 89 (2d Cir.1991). As noted, the first two statutory factors, the nature and circumstances of the offense charged and the weight of the evidence, weigh heavily against pretrial release. We agree with Judge Glasser’s conclusions in Gotti, which involved substantially the same conditions as are at issue here, that the electronic surveillance systems can be circumvented by the “wonders of science and of sophisticated electronic technology,” and that the monitoring equipment can be rendered inoperative. Gotti, 776 F.Supp. at 672-73. We rejected reliance upon similar bail conditions in United States v." }, { "docid": "23295754", "title": "", "text": "direction, as Acting Underboss of the Family. He has most recently served as a captain and directed a crew that engaged in specific crimes, alleged to include murder and loansharking. Finally, Amato possessed a dangerous weapon when arrested, demonstrating his capacity for violence. The fratricidal war, including over twenty shootings and the injury and deaths of innocent bystanders, proves the deadly “nature and seriousness of the danger to any person or the community that would be posed by [Amato’s] release.” 18 U.S.C. § 3142(g)(4). We cannot agree that waiting to see “[i]f the war heats up again” or that relying upon perceived gangland inefficiency protects the community. The war is a demonstrated danger to bystanders, even if we make the heroic assumption that the Bail Reform Act does not require detention to protect members of gangs. Amato argues strenuously that the record does not show that his participation in the fratricidal war or his danger to the community is comparable to Orena’s. Nevertheless, the record does show that Amato is an important member of the Orena faction and one who readily furthers its criminal objectives through violence. Moreover, while Amato may argue that he is harmless in comparison to Orena, that argument merely underlines Orena’s criminal and violent propensities but is hardly persuasive of Amato’s pacific nature. We therefore conclude that the detention period contemplated does not, in light of the causes of delay and the dangerousness of Amato, violate due process. The only remaining question, therefore, is whether the conditions of bail mitigate the threat that Amato represents to the community. Section 3142(g) sets forth the factors determining whether “there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(g). These factors include the nature and circumstances of the offense charged, the weight of the evidence against the person, the history and characteristics of the person, and \"the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C." }, { "docid": "960597", "title": "", "text": "also United States v. Bey, Crim. No. 84-205, slip op. (N.D.Ohio 1985). Finally, defendant contends that even if the statute is to be read in the disjunctive, the government has failed to meet its burden of proving by clear and convincing evidence that there is no condition or combination of conditions which will assure the safety of any other person or of the community; this burden of proof is set forth in section 3142(f). Under the new Act, before ordering pretrial detention, I must consider a number of factors, including: the nature of the offense charged and its circumstances, 18 U.S.C. § 3142(g)(1); the weight of the evidence against the defendant, § 3142(g)(2); the history and characteristics of the defendant, § 3142(g)(3); and the nature and seriousness of the threat to the community posed by the pretrial release of the defendant, § 3142(g)(4). The government has filed its motion for pretrial detention pursuant to § 3142(f)(1)(D) which applies when a defendant is charged with a felony after having been convicted of two or more prior offenses described in paragraphs A through C. In this case, defendant Askari has twice before been convicted of armed robbery which constitutes a crime of violence as defined in 18 U.S.C. § 3156(a)(4)(A) and as described in § 3142(f)(1)(A). Defendant is now charged with another felony, namely, possession of a firearm by a convicted felon. I need not at this time consider the merits of the government’s case against defendant, but I conclude that there is considerable evidence of the crime charged. I have considered the evidence offered by the government and defendant Askari as to his personal characteristics, community ties, employment, record of appearance at other judicial proceedings, and financial resources. The defendant appears to be a long term resident of the Philadelphia area, his family resides in Philadelphia, and he has an offer of employment here. I note, however, that defendant has a lengthy criminal record which includes several convictions for violent crimes, and that a pattern has developed in defendant’s behavior. Considering the factors mandated under Section 3142(g), on balance I find" }, { "docid": "4466161", "title": "", "text": "(“The [district] court found that Anthony Y.’s family background was ‘unstable and unsupportive,’ citing the testimony of Anthony’s parents and school principal. It then weighed this factor in favor of transfer, noting Dr. Roger Enfield’s opinion. ... While the overall tenor of Dr. Enfield’s testimony disfavored transfer, the district court could reasonably rely on that particular statement in finding that it would be more difficult to rehabilitate a child with an unsupportive family than a child with a stable, supportive one.”); United States v. H.V.T., No. 96-cr-244 (RSP/GJD), 1997 WL 610767, at *4 (N.D.N.Y. Oct. 1, 1997) (“[T]he defense’s expert psychologist ] testified that H.V.T.’s separation from his mother at a young age, his lack of role models or attachment figures, and his older brother’s death left H.V.T. highly vulnerable to being misdirected by others.... It appears that H.V.T. had a family structure available to him in his older brothers and aunts and uncles in the United States. Instead of taking advantage of the support that structure offered, H.V.T. quit school and left home.... It also appears that H.V.T. became a member of a gang. He wears a tattoo containing a dragon and the letters [of his gang].... H.V.T. has been for some time completely estranged from his aunt in Florida who took him in following his prior conviction, and his brother indicates that he has had no contact with H.V.T. and would be unable to take care of him. I find that H.V.T.’s social background favors transfer.”). B. Nature of the Offense Alleged As an initial matter, as noted supra, a district court should not undertake an examination of the strength of the government’s evidence in evaluating a transfer motion, but instead should “assume that, for the purposes of the transfer hearing, the juvenile committed the offense charged in the Information.” Nelson I, 68 F.3d at 589; see also United States v. Doe # 1, 74 F.Supp.2d 310, 317 n. 6 (S.D.N.Y.1999) (“For the purpose of a transfer determination, the court must assume that the juvenile committed the offenses charged in the indictment.”). There is no question that the" }, { "docid": "8921362", "title": "", "text": "to the pending charges. See United States v. Gray, 651 F.Supp. 432, 438-39 (W.D.Ark.1987), aff'd, 855 F.2d 858 (8th Cir.), cert. denied, — U.S. -, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988). Also, should defendant be convicted of committing an offense while on pretrial release, he would be exposed to the possibility of an additional consecutive sentence of imprisonment of up to ten years. 18 U.S.C. § 3147. The fourth factor of section 3142(g) directs the court to consider “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” On the one hand, the evidence before the court would not support a finding by clear and convincing evidence that this defendant has committed an act of violence against the person or property of another. On the other hand, this defendant has previously been convicted of possession of a firearm, and has continued his illegal activities while on probation. The government contends that the risk of harm to the community is serious because this defendant is a member of a street gang, and because, as alleged in Count One of the indictment, the weapons at issue in this case were brought into Massachusetts to arm the defendants’ gang against the Intervale Street gang. As noted above, however, the issue is whether “[this] person’s release” would pose danger, 18 U.S.C. § 3142(g)(4) — that is, whether releasing Brown will pose a danger that would not exist if he were held in pretrial preventive detention. Under the congressional mandate, a finding of dangerousness cannot rest on evidence pertaining to other defendants or types or groups of defendants, or on evidence of a risk of harm that will exist in the community, in any event, even if this person is still in custody. The government’s argument is thus unpersuasive. There is insufficient evidence before the court to substantiate by clear and convincing evidence the allegations with respect to Brown’s participation in the gang or the conspiracy, or even with respect to the existence of any gang vendetta directly involving Brown. Although there is" }, { "docid": "5019274", "title": "", "text": "with intent to murder and firearms possession) in connection with his and Moreno’s shooting of Kenneth Walker. See id. § 4AL3 (departure factors may include whether offense of conviction was committed “while on bail or pretrial release for another serious offense”); United States v. Diaz-Martinez, 71 F.3d 946, 952 (1st Cir.1995). The Walker shooting occurred, in the Lenox Street Housing Development a mere month prior to the offense of conviction. See Figaro, 935 F.2d at 7 (“[Rjeeency of a prior offense may be considered an indicator of increased likelihood of recidivism, exacerbating the seriousness of a defendant’s criminal history.”). Given his recent, persistent, and escalating record of violent behavior, see United States v. Doe, 18 F.3d 41, 47 (1st Cir.1994) (noting that departure was warranted where defendant’s past criminal conduct demonstrated “significantly unusual penchant for serious criminality”), we find no abuse of discretion in the district court’s decision that an upward departure was warranted because Hardy’s pre-departure CHC underrepresented the seriousness of his past criminal conduct and the likelihood of recidivism. See Koon, — U.S. at ---, 116 S.Ct. at 2046-47 (holding that district court is entitled to “substantial deference” in its determination that particular facts of case implicate a departure factor). b) Offense-Related Characteristics (§ 5K2.0) Similarly, we find little merit in the claim that the sentencing court abused its discretion in finding three “unusual” offense-related characteristics cumulatively adequate to remove Hardy’s case from the “heartland” of section 2K2.1 cases. Given their recognized utility and ubiquity in a very broad spectrum of criminal activities, firearms presumably may be possessed in circumstances posing widely divergent degrees of dangerousness. Accordingly, it is not apparent to us that the Sentencing Commission attempted, let alone managed, to devise section 2K2.1 with a view to the extraordinary dangers posed by gang members indiscriminately shooting and discarding particularly dangerous firearms in crowded inner-city residential areas. Hardy and his associates repeatedly discharged-a semi-automatic weapon at nighttime within a crowded residential housing development and, while fleeing from the scene to evade arrest, Hardy planted a loaded sawed-off shotgun barrel-wp in the backyard of a residence where children" }, { "docid": "22215608", "title": "", "text": "substantial flight risk, given his U.S. citizenship. The government contends that Roman came forward with no evidence whatsoever to rebut the statutory presumption favoring detention. Moreover, the government asserts broadly that any showing of strong community ties, a substantial bond, or electronic monitoring cannot rebut the presumption of dangerousness, though it may be relevant to the issue of flight risk. We agree with the government that these factors cannot outweigh the presumption of dangerousness in this case, and reverse the order granting Roman’s release. We need not address the broader question of whether these showings can ever rebut the presumption of dangerousness. We have expressly held in several cases that a bail package that might “reasonably assure the appearance of [the defendant] at trial, will not reasonably assure the safety of the community.” Rodriguez, 950 F.2d at 89; see also United States v. Orena, 986 F.2d 628, 682 (2d Cir.1993) (reversing grant of bail to defendants indicted on RICO charges based upon murder, conspiracy to murder, loansharking, and illegal weapons possession, and holding that electronic monitoring, house arrest and interactions limited to family would not “alleviate [Amato’s] danger to the community”). In this case, as in Rodriguez, electronic monitoring, home detention and assurances by Roman’s fiancee that he will comply with the requirements of pretrial release are insufficient in the face of strong evidence that Roman presents both a danger to the community and a flight risk. First, the nature of the crime with which Roman has been charged — conspiracy to commit armed robbery of a drug-dealer— weighs heavily against release. Second, the evidence against Roman is strong. Loaded guns, as well as fake police badges and handcuffs, were found in the car in which Roman was a passenger. The district court found that it was “more likely than not that [Roman] would have been one of the perpetrators to brandish a weapon and impersonate police officers .In addition to the crime charged here, Roman has twice been convicted of weapon possession — one felony conviction, and one misdemeanor conviction. We find the district court committed clear error in" }, { "docid": "3613078", "title": "", "text": "a boyfriend to beat Mol-ton. Molton is now twenty-three, and has been in and out of prison since age seventeen. He and his siblings were mostly raised by their grandmother in East St. Louis. ii. Analysis of the district court’s approach The government sought a 120-month sentence and Molton sought a guidelines sentence. The district court sentenced Molton to 108 months’ imprisonment, a $500 fíne, a $100 special assessment, and three years of supervised release. The district judge explained his choice of sentence at the sentencing hearing and in a sentencing memorandum. At the sentencing hearing, the judge did exactly what we have encouraged judges to do: explain the relevance of the § 3558(a) factors to their sentencing decision. See, e.g., Hill, 645 F.3d at 905. For instance, the district judge considered this particular defendant’s criminal history (“this is Mr. Molton’s third felony involving a firearm”) as well as mitigating considerations (his “horrific childhood”), his characteristics (his “violent and' dangerous” nature), and his respect for law (“He has shown little or no respect for the law beginning at a young age. He is only 23. He has criminal history category of four and three weapon offenses.. He was on parole at'the time of the instant offense and just 12 days earlier was on electronic monitoring.”). The district judge also considered specific deterrence (given Molton’s past, “I am afraid he is likely to recidi-vate”; “in felonious gun possession cases with [violent] individuals ..., guideline sentences do not deter”). The judge determined that a guideline sentence was insufficient punishment for a twenty-three year old convicted of his third firearm offense. Viewing this defendant in comparison to others, though, the judge declined to sentence Molton to the statutory maximum because that type of punishment “is reserved for the worst of the worst.” See 18 U.S.C. § 3553(a)(6) (instructing district judges to sentepce defendants so as to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). Molton argues that the district court did not appropriately consider his background and upbringing. But the judge did consider Molton’s" }, { "docid": "23060217", "title": "", "text": "the nature and circumstances of the offense and the history and characteristics of the defendant” U.S.S.G. § 5D1.3(b) (emphases added); see also 18 U.S.C. § 3553(a)(1). The court-ordered driving ban was reasonably related to Kingsley’s demonstrative past wanton automotive vio lations, including multiple episodes, of reckless operation while chemically impaired and/or in the possession of dangerous weapons. Indeed, the vexing “history and characteristics of the defendant” establish that furtherance of the paramount governmental interest in protection of public safety, standing alone, could justify the subject driving proscription. Additionally, the district court’s ban on the defendant’s probationary operation of motorized vehicles was independently supported by “the nature and circumstances of the offense” of conviction. On December 17, 1996, using his truck, Kingsley had stored and transported an illegal arsenal of at least eleven firearms to the residence of his victim. He actively deployed two of those armaments to unlawfully threaten, intimidate, and coerce his victim into surrendering items of personal property. The defendant also intended to transport that extorted personalty in his motor vehicle. Although the use of his van was not an essential element of the instant offense of possessing firearms as a convicted felon, that vehicle’s involvement was nonetheless an integral “circumstance of the offense” which materially contributed to its overall “nature.” See 18 U.S.C. § 3553(a)(1); U.S.S.G. § 501.3(b). Accordingly, the subject three-year complete suspension of Kingsley’s driving privileges following his release from prison was reasonably related to both the nature and circumstances of his offense of conviction, and to his criminal history and personal characteristics. Because special condition no. 5 was independently justified by either factor standing alone, a fortiori, it was legitimized by the aggregation of both factors. Furthermore, the driving restriction reasonably advanced legitimate goals of supervised release including assurance of community safety, crime deterrence, and rehabilitation of the felon, by restraining him from getting behind the wheel of a motor vehicle, an instrumentality through which he committed many of his multitudinous prior dangerous felonies, including the crime of conviction. See United States v. Hughes, 964 F.2d 536, 542 (6th Cir.1992) (resolving that a condition" }, { "docid": "19423926", "title": "", "text": "681. For present purposes, however, the burden is on the government, and it suffices to conclude that the government has not yet provided evidence or legal analysis sufficient to allow the Court to conclude that the \"weight of the evidence against\" Taylor is substantial. The Court, accordingly, finds that the second factor weighs against continued pretrial detention. 3. History and Characteristics of the Defendant The third factor requires the Court to consider (1) the defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (2) whether, at the time of the current offense or arrest, the defendant was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law. 18 U.S.C. § 3142(g)(3). Consideration of these factors does not weigh definitively in either direction. On the one hand, Taylor has been convicted of at least two serious felonies: possession of cocaine with intent to distribute, and possession of a firearm by a felon. Even more significantly, both convictions parallel the current charges, suggesting that Taylor was not previously deterred by his prior, lengthy sentences. But, on the other hand, Taylor's prior convictions are dated. His conviction for possession with intent to distribute occurred almost a quarter century ago, and his conviction for possession of a firearm by felon occurred well over a decade ago. Furthermore, the government has not presented evidence that the underlying conduct giving rise to those convictions involved violence. In the related context of determining when the presumption in favor of detention applies, the D.C. Circuit declined to treat felon-in-possession charges, standing alone, as crimes of violence. See United States v. Singleton , 182 F.3d 7, 13-14 (D.C. Cir. 1999). To be sure, the Court of Appeals applied a \"categorical approach\" in reaching that conclusion, while the present question necessarily requires case-by-case consideration. But, given the lack of evidence that Taylor, in fact, engaged in" }, { "docid": "23201397", "title": "", "text": "crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. 18 U.S.C. § 3142(g)(l)-(4) (1988 & Supp. II 1990) (emphasis added). In assessing these considerations, we note that Rivera was arrested in 1982 for possession of a controlled substance, was again arrested in 1983 for loitering and the unlawful use of a controlled substance, and pled guilty to these charges. Rivera was convicted of criminally negligent homicide in the 1983 shooting death of his wife. Moreover, much of the ongoing criminal activity charged in the indictment occurred during Rivera’s five years of probation following his homicide conviction. The district court’s assessment of Millan’s dangerousness was more extensive. At the outset of the memorandum in which his release was ordered, the court explicitly stated that “the evidence presented supports Mil-lan’s continued detention on the ground! ] of dangerousness,” Millan, 824 F.Supp. at 39, but concluded that such detention was constitutionally impermissible. Id. Its subsequent discussion of the issue, however, expressed a more mixed view. After summarizing testimony by former Blue Thunder confederates that Millan had ordered numerous shootings, beatings, and a contract murder, and had issued threats against the families of witnesses who testified adversely to him at trial, the court stated that Millan did not “present!] a danger to any specific individual,” id. at 44, noting that he had not individually threatened the testifying confederates or their families, and that the cooperating" }, { "docid": "22230576", "title": "", "text": "Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code. . If convicted on all counts, Mr. Portes faces a possible fifty-four year prison sentence. . On appeal, Mr. Portes does not vigorously contest that the government had probable cause. . The conditions need not guarantee appearance but they must reasonably assure appearance. United States v. Orta, 760 F.2d 887, 890-92 (8th Cir.1985). . Section 3142(g) provides: Factors to be considered. — The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning— (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, he was on probation, on pa role, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. . We are aware that the Ninth Circuit has apparently adopted the slightly higher standard of \"clear preponderance.\" United States v. Montamedi, 767 F.2d 1403, 1407 (9th Cir.1985). . See supra note 8. . At oral argument, Mr. Portes’ counsel argued that Portes' detention in Chicago approximately one hour from his attorney's office combined with the fact that Mr. Portes does not speak English make it impossible to develop an effective defense. He argued that the pre-trial detention denies Mr. Portes effective assistance of" } ]

[ { "docid": "15960452", "title": "", "text": "to regulate drivers engaged in interstate and foreign commerce. Federal Highway Administration (FHWA), DOT Notice of Interpretation, 46 Fed.Reg. 87,902 (1981) (to be codified at 49 C.F.R. pt. 390). In its Interpretation of 49 U.S.C. § 304, DOT addressed relevant case law, including Morris v. McComb, and concluded that DOT will have jurisdiction over an individual driver if: [The driver is] called on, or is subject to being called on, to drive in interstate commerce as part of the driver’s regular employment ... [or] even if the driver has not personally driven in interstate commerce if, because of company policy and activity, the driver could reasonably be expected to do interstate driving. Id. at 87,903 (emphasis added). Moreover, the interpretation provides that, “[i]f the carrier does interstate work or advertises for such work and assigns drivers randomly to that driving, all the drivers are under the jurisdiction of 49 U.S.C. 304.” Id. (emphasis added). However, “[j]urisdiction does not attach if there is no possibility of the individual driver doing interstate driving or if the possibility of interstate driving is remote.” Id. (emphasis added). As the case law bears out, a driver is not exempt under the Motor Carrier Act merely because he takes one or two interstate trips. See, e.g., Crooker v. Sexton Motors, Inc., 469 F.2d 206, 211 (1st Cir.1972) (court remanded case for determination regarding weeks in which an employee performed no interstate driving; and, as to those weeks the transportation exemption did not apply and overtime compensation was due). In fact, as stated earlier, at the time Morris v. McComb was handed down, DOT (then the ICC) used a week-by-week analysis of driver’s activities to determine whether the ICC had jurisdiction. Thus, the Supreme Court indicated that a driver’s status may char,6e from week to week. Because the week-by-week determination placed too much burden on employers as well as the agencies with fluctuating jurisdiction, later, as delineated in DOT’S 1981 interpretation, a “4-month rule” was put into place. The mere existence of the one-week and/or four-month rules compels the conclusion that, while DOT may have jurisdiction over" } ]

[ { "docid": "318087", "title": "", "text": "in interstate commerce if such hauls had been obtained by appellee. Even those drivers such as appellant who had never handled an interstate shipment were subject to be assigned an interstate trip.” Id. at 323; Accord Brennan v. Schwerman Trucking Co. of Virginia, Inc., 540 F.2d 1200, 1204 (4th Cir.1976) (“Schwerman at all times relevant hereto held itself out as available for interstate cartage, solicited interstate business and handled any interstate shipments received ... As such, Schwerman falls squarely within the definition of a common carrier and is subject to regulation by the Secretary of Transportation”). For the reasonable expectation test to apply, “a carrier’s involvement in interstate commerce must be established by some concrete evidence such as an actual trip in interstate commerce or proof that interstate business was solicited,” and the carrier must be shown to “have engaged in interstate commerce within a reasonable period of time prior to the time at which jurisdiction is in question.” Reich v. American Driver Service, Inc., 33 F.3d 1153, 1156 (9th Cir.1994) (“if jurisdiction is claimed over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier’s interstate runs.”). For instance, in McGee v. Corporate Express, 2003 WL 22757757 (N.D.Ill. 2003), the court noted that the exemption “does not apply ‘if there is no possibility of the individual driver doing interstate driving or if the possibility of interstate driving is remote.’ ” Id. at *6. The defendant in McGee contended that its supervisors randomly assigned interstate deliveries; however, the plaintiffs presented evidence that drivers were assigned to work routes on a permanent (or at least quasi-permanent) basis and that routes were reassigned only when someone did not come into work. Id. at *7; See Mason v. Quali ty Transport Services, Inc., 2005 WL 5395338, *3 (S.D.Fla.,2005) (no reasonable expectation of traveling interstate. Mason testified that when the subject of driving other routes besides a local route came up during his employment interview, he indicated that" }, { "docid": "318078", "title": "", "text": "basis: “Whether transportation is interstate or intrastate is determined by the essential character of the commerce, manifested by shipper’s fixed and persisting transportation intent at the time of the shipment, and is ascertained from all of the facts and circumstances surrounding the transportation.” Klitzke, 110 F.3d at 1469. Thus, the Motor Carrier exemption defense can be established by (1) showing that a driver can reasonably be expected to drive across state lines, or (2) drivers hauled goods in “the practical continuity of movement” in interstate commerce. Watkins v. Ameripride Serv., 375 F.3d 821, 825-26 (9th Cir.2004). A driver is considered to be driving in interstate commerce if the driver is called upon to drive in interstate commerce as part of the driver’s regular employment, or, even if the driver has not personally driven in interstate commerce, if, because of company policy and activity, the driver could reasonably be expected to drive in interstate commerce. As such, if a carrier does interstate work and assigns drivers randomly to that driving, all of its drivers are considered subject to the Motor Carrier Safety Act. Dole v. Circle “A” Construction, Inc., 738 F.Supp. 1313, 1322 (D.Idaho 1990) (To prove the defense (1) Circle A engaged in interstate commerce; and (2) that all of its drivers could reasonably have been expected to make interstate runs.) However, a driver is not subject to the Motor Carrier Safety Act if there is no possibility of driving interstate or the possibility is remote. (Ibid.) See also Kosin v. Fredjo’s Enterprises, Ltd., 1989 WL 13175 (N.D.Ill.1989) (Factors to consider, in determining whether the motor carrier exemption applies to an entire class of employees when only a few are involved “in interstate commerce,” are: (1) the proportion of interstate to intrastate employee activity; (2) the method by which a carrier assigns the interstate activity to its employees; and (3) the overall nature of the carrier’s business). 2. Burden of proof of the exemption To ensure employee’s maximum coverage under the FLSA, exemptions under Section 213 are construed narrowly against the employer asserting their applicability, and the employer carries the" }, { "docid": "5877247", "title": "", "text": "210 (1st Cir.1972); Sinclair, 447 F.Supp. at 11). In Levinson, supra, the Supreme Court, in comparing the responsibilities of drivers and loaders, observed that a “driver’s work more obviously and dramatically affects the safety of operation of the carrier during every moment that he is driving ...” 330 U.S. at 678, 67 S.Ct. 931. In Crooker, the First Circuit Court of Appeals noted that the de minimis rule “has been applied ... where the employee’s connection with anything affecting interstate motor carrier operations was so indirect and casual as to be trivial.... The activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial.” 469 F.2d at 210. And in Sinclair, supra, at 11, the court concluded that “the de minimis rule should seldom, if ever, be applied to one who drives a motor vehicle carrying property of a private carrier in interstate commerce.” In any event, however, we conclude Plaintiffs are exempt from the FLSA’s maximum hours and overtime require ments regardless of the number of interstate/intrastate trips they actually made because, at all relevant times, they could have been called upon in the regular course of their employment to make trips affecting interstate commerce. The relevancy of this consideration has been clearly articulated by both the Department of Transportation and the Department of Labor. The latter agency has stated that the motor carrier exemption will apply if the bona fide duties of the job performed by the employee are in fact such that he is— or “is likely to be” — called upon in the ordinary course of his work to perform, “either regularly or from time to time,” the requisite safety-affecting activities. See 29 C.F.R. § 782.2(b)(3). See also DOL Wage and Hour Division’s Field Operations Handbook, § 24e01(b) (May 13,1982) (Ex. F. to Def.’s Append, in Supp. of Mot. for Summ. Judg. [Doc. No. 18]) (where driver has not made an actual interstate trip, he/she may still be subject to DOT’S jurisdiction if: (1) the carrier is shown to have an involvement in interstate commerce and, (2) it can be established that" }, { "docid": "9755477", "title": "", "text": "runs, and that means more than a remote possibility. Reich v. American Driver Service, Inc., supra, at 1156 and n. 4. We are not concerned here with private carriage. Defendant is both a motor common carrier and a motor contract carrier, with appropriate certification. Its Pace contract involves solely intrastate business, but it also operates an interstate charter business, a Sears/O’Hare shuttle and airport emergency services. Both of the last two services are in interstate commerce for the purposes of the Secretary of Transportation’s authority. Car clearly is engaged in interstate commerce. The only issue is whether or not it has been clearly established that plaintiff could reasonably be expected to make one of the interstate runs, whether or not he actually did so. We turn then to the record evidence. Plaintiff was employed by Car as a driver for two periods: July 12, 1993 to December 16,1994, and February 20,1995 to October 9, 1995. When he was first employed he signed a form acknowledging that he “may be asked to assist the Charter Department at some time.” All Car drivers are subject to driving for the Charter Department any time, as needed. They are also subject to driving emergencies. When Car receives a call for an airport emergency the buses are driven by available drivers, and drivers are pulled off fixed routes — such as plaintiffs regular run — to drive airport emergencies, the O’Hare/Sears shuttle and Charter routes. The Supervisor of Fixed Route Services was at some time in the past a driver on plaintiffs routes and was occasionally pulled off those routes to drive charters or the Sears/ O’Hare shuttle. As supervisor, he assigns drivers on plaintiffs routes to drive charter and the Sears/O’Hare shuttle. Airport emergencies are handled by whomever is available, and that may be a driver who regularly drives one of plaintiffs routes.. Plaintiff, however, during his employment by Car, never was called upon to drive a charter or the Sears/O’Hare shuttle, and did not expect to be unless, perhaps, there were no other drivers for those services due to a temporary absence. He" }, { "docid": "15960449", "title": "", "text": "drivers and mechanics employed between December 9, 1983, and April 23, 1986. As discussed previously, in cases such as this, courts, taking their cue from Morris v. McComb, have focused on the proportion of interstate-to-intrastate employee activity, the method by which the carrier assigns interstate activity to the pertinent class of employees, and the overall business of the carrier. Upon careful consideration of the record as a whole, this court finds that to grant Circle A’s motion would be to effectively grant a blanket exemption as to all Circle A drivers and mechanics employed during the relevant time periods. Were Circle A correct in its position, any carrier could rid itself of the obligation to pay overtime compensation by the simple act of parcelling out a minimal number of interstate trips among its employees. Clearly, the purposes of the Motor Carrier Act and the Fair Labor Standards Act cannot be ignored. Each Act seeks to protect different public interests. However, this court need not engage in weighing the value of protecting employee and motor vehicle safety against the value of assuring employees a fair wage for hours worked. Indeed, this court has been directed and has a duty to construe FLSA exemptions narrowly in order to extend the remedial benefits of the Act to the greatest number of persons. Under the undisputed circumstances in this case, to withhold the benefit of the FLSA from all of Circle A’s drivers and mechanics would be inconsistent with the legal standards this court must observe. In Morris, the Court noted the facts supported a finding that interstate routes were assigned indiscriminately among all the drivers, so that all of the carrier’s drivers were eligible to receive an interstate route at some point throughout the year. Morris v. McComb, 332 U.S. at 433, 68 S.Ct. at 136. With respect to Circle A, however, this court is neither satisfied that interstate drivers were determined from a pool or on a rotating basis, nor that all Circle A drivers had a reasonable expectation of driving in interstate commerce. The record clearly does not support a finding" }, { "docid": "318085", "title": "", "text": "traveling in interstate commerce. The Court found that this evidence showed “interstate commerce” and granted the employer summary judgment on its defense of the Motor Carrier exemption. Burris, 651 F.Supp. at 38. Thus, there is evidence before the Court of potential class members actually driving across state lines. B. Employees’ Reasonable Expectation of Driving interstate Petro-Chemical argues that its truckers had reasonable expectations of driving in interstate commerce. As such, the drivers are exempt from overtime compensation. As noted in Elliot v. Dave Ernstes & Sons Trucking, 2006 WL 2849705, *6 (S.D.Ind.2006), “The ‘indiscriminate assignment’ formulation from Morris is just a shorthand way to get at the real issue— whether Plaintiffs could reasonably be expected to travel interstate as part of their duties.” In determining whether the drivers had reasonable expectations of interstate driving, courts look at whether the carrier conducted interstate work or whether the carrier actively attempted to obtain interstate work during the period in question. (See Morris v. McComb, 332 U.S. at 433, 68 S.Ct. 131.) Likewise, in Starrett v. Bruce, 391 F.2d 320, 322-323 (10th Cir.), cert. denied, 393 U.S. 971, 89 S.Ct. 404, 21 L.Ed.2d 384 (1968), a truck driver brought an action to recover overtime compensation under the FLSA. While the owner derived no income from transportation of goods in interstate commerce, he held himself out to the general public as being available for interstate hauls and actively solicited interstate business. The truck driver argued that the trucking company did not actually perform any interstate transportation. Nonetheless, the court found that the lack of actual interstate transportation did not dispose of the case. The court held that, “It is however the character of the employee’s activities rather than the proportion of either his time or his activities that determines the actual need for the Commission’s power to establish qualifications and maximum hours of service” citing Morris v. McComb. Starrett v. Bruce, 391 F.2d at 322-323 (emphasis added). Significantly, the court noted that even though no interstate activities were obtained, “[a]ll of ap-pellee’s truck drivers were assigned work indiscriminately and all would have actually driven" }, { "docid": "318077", "title": "", "text": "§ 207(a). The Secretary of Transportation has power to regulate transportation 1) between a place in— (A) a State and a place in another State; (B) a State and another place in the same State through another State; Thus, interstate commerce falls within the jurisdiction of the Secretary of Transpor tation and is exempt from coverage under FLSA. Moreover, the Secretary of Transportation has jurisdiction to regulate intrastate commerce that “is a practical continuity of movement from the manufacturers or suppliers without the state, through a warehouse and on to customers.” Klitzke v. Steiner, 110 F.3d 1465, 1469 (9th Cir.1997) (involving local delivery driver for linen service that ordered roughly half of the materials it supplied from out-of-state suppliers, based on specific customers’ orders); but see Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 255 (3rd Cir.2005), cert. denied, 547 U.S. 1093, 126 S.Ct. 1786, 164 L.Ed.2d 557 (2006) (the “essential character” of truly interstate transport will show some “essential continuity of movement.”). Whether such intrastate commerce is exempt is determined on an ad hoc basis: “Whether transportation is interstate or intrastate is determined by the essential character of the commerce, manifested by shipper’s fixed and persisting transportation intent at the time of the shipment, and is ascertained from all of the facts and circumstances surrounding the transportation.” Klitzke, 110 F.3d at 1469. Thus, the Motor Carrier exemption defense can be established by (1) showing that a driver can reasonably be expected to drive across state lines, or (2) drivers hauled goods in “the practical continuity of movement” in interstate commerce. Watkins v. Ameripride Serv., 375 F.3d 821, 825-26 (9th Cir.2004). A driver is considered to be driving in interstate commerce if the driver is called upon to drive in interstate commerce as part of the driver’s regular employment, or, even if the driver has not personally driven in interstate commerce, if, because of company policy and activity, the driver could reasonably be expected to drive in interstate commerce. As such, if a carrier does interstate work and assigns drivers randomly to that driving, all of its drivers are considered" }, { "docid": "9351269", "title": "", "text": "of the company’s travel was intrastate rather than interstate. Under those facts, the Reich court held that from the “beginning of each harvesting season continuing until one of its drivers actually engaged in interstate commerce, [the employer] was subject to the jurisdiction of the Secretary of Labor, and consequently, to the maximum hours provisions of the FLSA.” Id. at 1157. Garcia v. Pace Suburban Bus Service, 955 F.Supp. 75 (N.D.Ill.1996), is also instructive. In Garcia, the court addressed the question of application of the 13(b)(1) exemption to individual employees, recognizing that the exemption does not automatically apply to drivers who never drive interstate routes merely because an employer qualifies as an interstate motor carrier under the jurisdiction of the DOT and some of its employees drive interstate routes. Notwithstanding an employer’s status as a motor carrier and the fact that the employer is otherwise involved in interstate commerce, one must also examine the activities of the individual driver to determine whether that driver is subject to FHA jurisdiction. Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947). Relying on the same notice of interpretation (contained in 46 Fed.Reg. 37,-902, 37,903 (1981)) relied upon in Reich, the Garcia court found that DOT “jurisdiction extended only to those drivers who reasonably could be expected to make one of the carrier’s interstate runs, and that means more than a remote possibility.” Id. at 77. This court agrees that the “reasonable expectation” test is appropriate and thus the question in the instant case becomes whether those “I-Ride” drivers who have not driven interstate routes in the past could be reasonably expected to drive such routes now or in the future. In Garcia, the employer operated a strictly intrastate transportation service in the Chicago area but also operated a charter service and an airport service, both of which involved interstate transportation. The plaintiff in Garcia was a driver who had driven only intrastate routes and sought overtime compensation under the FLSA. As in the instant case, the issue was whether the employer was entitled to an exemption from the overtime requirements" }, { "docid": "318079", "title": "", "text": "subject to the Motor Carrier Safety Act. Dole v. Circle “A” Construction, Inc., 738 F.Supp. 1313, 1322 (D.Idaho 1990) (To prove the defense (1) Circle A engaged in interstate commerce; and (2) that all of its drivers could reasonably have been expected to make interstate runs.) However, a driver is not subject to the Motor Carrier Safety Act if there is no possibility of driving interstate or the possibility is remote. (Ibid.) See also Kosin v. Fredjo’s Enterprises, Ltd., 1989 WL 13175 (N.D.Ill.1989) (Factors to consider, in determining whether the motor carrier exemption applies to an entire class of employees when only a few are involved “in interstate commerce,” are: (1) the proportion of interstate to intrastate employee activity; (2) the method by which a carrier assigns the interstate activity to its employees; and (3) the overall nature of the carrier’s business). 2. Burden of proof of the exemption To ensure employee’s maximum coverage under the FLSA, exemptions under Section 213 are construed narrowly against the employer asserting their applicability, and the employer carries the burden of proving that an exemption applies. See, e.g., Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206, 86 S.Ct. 737, 747, 15 L.Ed.2d 694 (1966). The Ninth Circuit Court has recognized that, “[ejmployers who claim an exemption applies to their employees must show that the employees fit plainly and unmistakably within its terms.” Worthington v. Icicle Seafoods, Inc., 774 F.2d 349, 352 (9th Cir.1984), cert. granted in part, 474 U.S. 900, 106 S.Ct. 270, 88 L.Ed.2d 224 (1985), and judgment vacated on other grounds, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986). Defendant argues that the class at issue in the instant motion is improper because an intensive individualized inquiry will have to be performed to determine whether each potential member has driven outside California. Defendant argues that the Motor Carrier exemption applies because (1) drivers actually made interstate hauls, (2) the drivers could reasonably be expected to make interstate hauls, and (3) the drivers hauled goods “in the stream of interstate commerce.” A. Drivers actually made interstate hauls It" }, { "docid": "8063872", "title": "", "text": "to perform whatever technical repair services may be required. Accordingly, the transportation of such property by motor vehicle in interstate commerce is a distinct and definite reason for the trip by these service managers and that in those cases where, as a regular practice, a service manager transports this equipment across State lines they would qualify for the overtime exemption under section 13(b)(1) of the Act. Although the DOT is not bound by the DOL’s interpretation of the DOT’S authority under the overtime exemption, the above reasoning is persuasive. Because the plaintiffs transported tools, parts, and equipment without which they could not have performed their duties for CableData and the services required of it by its customers, the transportation of those items was an independent and essential reason for their service trips. Thus the tools, parts, and equipment constituted property within the meaning of the MCA. This conclusion does not give employers carte blanche authority to relieve themselves of the FLSA overtime requirements. The DOT’s jurisdiction over employees of private motor carriers is limited to those who affect the safety of operation. The DOT has authority over drivers only where the employees regularly travel interstate or reasonably are expected to do interstate driving. See Dole v. Circle “A” Constr., Inc., 738 F.Supp. 1313, 1323 (D.Idaho 1990) (DOT has jurisdiction over all employee-drivers if all drivers are subject to the indiscriminate distribution of interstate hauls); DOT Notice of Interpretation, 46 Fed.Reg. 37,902, 87,903 (1981) (DOT has jurisdiction over “a driver who is called on, or is subject to being called on, to drive in interstate commerce as part of the driver’s regular employment ... [or] because of company policy and activity, the driver could reasonably be expected to do interstate driving”). Nonetheless, motor vehicle operators can come within the terms of the MCA exemption even though they may perform other duties than driving. [I]t is not a question of fundamental concern whether or not it is the larger or the smaller fraction of the employee’s time or activities that is devoted to safety work. It is the character of the activities" }, { "docid": "318081", "title": "", "text": "is the nature of both the employer’s and the employee’s activities that is determinative of this exemption. “The exemption of an employee from the hours provisions of the Fair Labor Standards Act under section 13(b)(1) depends both on the class to which his employer belongs and on the class of work involved in the employee’s job. The power of the Secretary of Transportation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who: ... (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act.” 29 C.F.R. § 782.2(a) (emphasis added). To determine whether an employee falls within an exempt category, “what is controlling is the character of the activities involved in the performance of his job.” 29 C.F.R. § 782.2(b)(2). In Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947), the Supreme Court held the Motor Carrier exemption applicable to all drivers and mechanics of a small common carrier, even though the interstate carrier services rendered by the company constituted less than 4% of its total carrier services. Those interstate trips were found not to have been distributed equally among the company’s drivers. Despite the small number of interstate hauls actually made and the unequal distribution among the firm’s drivers of such hauls, the Court nevertheless found that the performance of such work, within the Motor Carrier exemption. The interstate work was “shared indiscriminately by the drivers and was mingled with the performance of other like driving services rendered by them otherwise than in interstate commerce.” 332 U.S. at 433, 68 S.Ct. at 136. The Court'in Morris based its decision on the fact that those interstate routes which were serviced were assigned indiscriminately among all the drivers, so that all of the carrier’s drivers were eligible to receive an interstate route at some point throughout a year. Id. at 433, 68 S.Ct." }, { "docid": "9351270", "title": "", "text": "S.Ct. 131, 92 L.Ed. 44 (1947). Relying on the same notice of interpretation (contained in 46 Fed.Reg. 37,-902, 37,903 (1981)) relied upon in Reich, the Garcia court found that DOT “jurisdiction extended only to those drivers who reasonably could be expected to make one of the carrier’s interstate runs, and that means more than a remote possibility.” Id. at 77. This court agrees that the “reasonable expectation” test is appropriate and thus the question in the instant case becomes whether those “I-Ride” drivers who have not driven interstate routes in the past could be reasonably expected to drive such routes now or in the future. In Garcia, the employer operated a strictly intrastate transportation service in the Chicago area but also operated a charter service and an airport service, both of which involved interstate transportation. The plaintiff in Garcia was a driver who had driven only intrastate routes and sought overtime compensation under the FLSA. As in the instant case, the issue was whether the employer was entitled to an exemption from the overtime requirements under 13(b)(1). In determining the applicability of the exemption, the court considered the fact that the plaintiff had not been called upon to drive interstate routes in the past. Of course, this factor alone weighed against enforcement of the exemption. However, the court’s inquiry continued to take into account that: 1) upon hiring, the employer required the employee to sign a form acknowledging that he may be called upon to drive for the company’s interstate charter service; 2) the employer required its drivers to comply with the Federal Motor Carrier Safety Regulations and maintain all DOT forms; 3) that the employer maintained its vehicles in accordance with ICC regulations; and 4) that the FHA regularly conducted audits in which it determined that all drivers were subject to federal safety requirements. After consideration of all of these factors, the Garcia court determined that the exemption applied and the plaintiff was not entitled to overtime pay under the FLSA. Evidence that the 13(b)(1) exemption applies to First Class’s drivers — including its “I-Ride” drivers — is equally" }, { "docid": "12464473", "title": "", "text": "to the jurisdiction of the Interstate Commerce Commission. It is however the character of the employee’s activities rather than the proportion of either his time or his activities that determines the actual need for the Commission’s power to establish qualifications and maximum hours of service. Morris v. McComb, supra; Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158 (1947). The Interstate Commerce Commission is concerned with the maintenance of safety in interstate and foreign commerce, and its restrictions on the number of hours which those who so engage may work in any one workweek is obviously intended to prevent accidents due to fatigue, without regard to consideration of adequacy of compensation. Cf. Walling v. Comet Carriers, 151 F.2d 107 (2d Cir. 1945). As a practical matter it is not the amount of time an employee spends in work affecting safety, rather it is what he may do in the time thus spent, whether it be large or small, that determines the effect on safety. Ten minutes of driving by an unqualified driver could do more harm on the highway than a month of driving by a qualified one. Levinson v. Spector Motor Service, supra, dissenting opinion, 330 U.S. at p. 687, 67 S.Ct. at p. 950. Section 204 of the Motor Carrier Act is limited in its effect to those employees whose activities affect the safety of operation of motor vehicles engaged in interstate commerce. All of appellee’s truck drivers were assigned work indiscriminately and all would have actually driven in interstate commerce if such hauls had been obtained by appellee. Even those drivers such as appellant who had never handled an interstate shipment were subject to be assigned an interstate trip. Appellant was admittedly a truck driver, and if the appellee had been successful in obtaining the interstate shipments he sought during this period, appellant would have driven in interstate commerce. There can be no doubt that this activity would have affected the safety of operation in interstate commerce. Thus appellant was engaged in work subject to the jurisdiction of the Interstate Commerce Commission," }, { "docid": "318084", "title": "", "text": "cited therein.) Some of the potential class members actually made interstate hauls. The evidence presented demonstrates that PetroChemical employed approximately 150 drivers. Presumably, 150 were employed in each of the four applicable years. The evidence presented demonstrates numerous different drivers drove across state lines. Thus, there is evidence of actual interstate travel of the same drivers for whom plaintiff seeks class certification. The courts do not require significant activity to meet the interstate commerce requirement. In Chao v. First Class Coach Company, the court held that where 5-10% of the ride tickets for a bus service were purchased out of state by visitors to the state, the bus service was exempt from the FLSA due to the motor carrier exemption. Chao v. First Class Coach Company, Inc., 214 F.Supp.2d 1263, 1263 (M.D.Fla2001). In Burris v. Bozzay Roadrunner Service, Inc., 651 F.Supp. 36, 38 (E.D.Mo.1986), the employer presented evidence that 6.6% of the total hauling jobs undertaken required the carrier to cross state lines, and that 90.3% of the delivery runs during the period involved goods traveling in interstate commerce. The Court found that this evidence showed “interstate commerce” and granted the employer summary judgment on its defense of the Motor Carrier exemption. Burris, 651 F.Supp. at 38. Thus, there is evidence before the Court of potential class members actually driving across state lines. B. Employees’ Reasonable Expectation of Driving interstate Petro-Chemical argues that its truckers had reasonable expectations of driving in interstate commerce. As such, the drivers are exempt from overtime compensation. As noted in Elliot v. Dave Ernstes & Sons Trucking, 2006 WL 2849705, *6 (S.D.Ind.2006), “The ‘indiscriminate assignment’ formulation from Morris is just a shorthand way to get at the real issue— whether Plaintiffs could reasonably be expected to travel interstate as part of their duties.” In determining whether the drivers had reasonable expectations of interstate driving, courts look at whether the carrier conducted interstate work or whether the carrier actively attempted to obtain interstate work during the period in question. (See Morris v. McComb, 332 U.S. at 433, 68 S.Ct. 131.) Likewise, in Starrett v. Bruce, 391" }, { "docid": "8063873", "title": "", "text": "those who affect the safety of operation. The DOT has authority over drivers only where the employees regularly travel interstate or reasonably are expected to do interstate driving. See Dole v. Circle “A” Constr., Inc., 738 F.Supp. 1313, 1323 (D.Idaho 1990) (DOT has jurisdiction over all employee-drivers if all drivers are subject to the indiscriminate distribution of interstate hauls); DOT Notice of Interpretation, 46 Fed.Reg. 37,902, 87,903 (1981) (DOT has jurisdiction over “a driver who is called on, or is subject to being called on, to drive in interstate commerce as part of the driver’s regular employment ... [or] because of company policy and activity, the driver could reasonably be expected to do interstate driving”). Nonetheless, motor vehicle operators can come within the terms of the MCA exemption even though they may perform other duties than driving. [I]t is not a question of fundamental concern whether or not it is the larger or the smaller fraction of the employee’s time or activities that is devoted to safety work. It is the character of the activities rather than the proportion of either the employee’s time or of his activities that determines the actual need for the Commission’s power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment. Levinson, 330 U.S. at 674-75, 67 S.Ct. at 944. Thus, it is not determinative that the plaintiffs may have devoted more time to field service than to the transportation of property. Because their interstate operations affected safety on the highways, the plaintiffs fell within the MCA even though they were not employed primarily as carriers. See, e.g., Peraro v. Chemlawn Services Corp., 692 F.Supp. 109, 111, 114 (D.Conn.1988) (carpet cleaners who drive specially equipped trucks to clean carpets covered by MCA); Sinclair, 447 F.Supp. at 10-11 (employees who drive company-furnished pickups with tools, equipment, and supplies to service and maintain pipeline system covered by MCA); Harshman v. Well Serv., Inc., 248 F.Supp. 953, 958-59 (W.D.Pa.1964) (employees who drive cement pumping trucks to service and repair gas wells covered by MCA), aff'd per curiam, 355 F.2d 206" }, { "docid": "318088", "title": "", "text": "over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier’s interstate runs.”). For instance, in McGee v. Corporate Express, 2003 WL 22757757 (N.D.Ill. 2003), the court noted that the exemption “does not apply ‘if there is no possibility of the individual driver doing interstate driving or if the possibility of interstate driving is remote.’ ” Id. at *6. The defendant in McGee contended that its supervisors randomly assigned interstate deliveries; however, the plaintiffs presented evidence that drivers were assigned to work routes on a permanent (or at least quasi-permanent) basis and that routes were reassigned only when someone did not come into work. Id. at *7; See Mason v. Quali ty Transport Services, Inc., 2005 WL 5395338, *3 (S.D.Fla.,2005) (no reasonable expectation of traveling interstate. Mason testified that when the subject of driving other routes besides a local route came up during his employment interview, he indicated that he did not want to drive such routes and could not drive interstate for “professional” reasons, and that his employer indicated he would be assigned a local route permanently.) Petro-Chemical presents evidence that its drivers can be asked, and are asked, to make interstate hauls. Each of the driver declarations states, in sum and substance, that they were told that they may be asked to drive out of state and that each has an expectation that “I may be asked to haul petroleum products across California State lines at any given time, on any given shift.” (See e.g., Tom Anderson Decl. ¶ 3; Frank Arias Decl. ¶ 3, A1 Waller Decl. ¶ 3.) Pe-tro Chemical also presents evidence that during the hiring process, hirees are informed that Petro-Chemical is a “for hire” carrier and that drivers could be asked to asked to haul loads from California to Arizona, Nevada or other states. (Doc. 63, Decl. Randy Brown ¶ 2.) Petro-Chemical further presents evidence that it actively pursues and obtains interstate transportation of petroleum products. Petro-Chemical’s" }, { "docid": "5877248", "title": "", "text": "made because, at all relevant times, they could have been called upon in the regular course of their employment to make trips affecting interstate commerce. The relevancy of this consideration has been clearly articulated by both the Department of Transportation and the Department of Labor. The latter agency has stated that the motor carrier exemption will apply if the bona fide duties of the job performed by the employee are in fact such that he is— or “is likely to be” — called upon in the ordinary course of his work to perform, “either regularly or from time to time,” the requisite safety-affecting activities. See 29 C.F.R. § 782.2(b)(3). See also DOL Wage and Hour Division’s Field Operations Handbook, § 24e01(b) (May 13,1982) (Ex. F. to Def.’s Append, in Supp. of Mot. for Summ. Judg. [Doc. No. 18]) (where driver has not made an actual interstate trip, he/she may still be subject to DOT’S jurisdiction if: (1) the carrier is shown to have an involvement in interstate commerce and, (2) it can be established that the driver “could have, in the regular course of his/her employment, been reasonably expected to make one the carrier’s interstate runs.”). The DOT has stated in an interpretive ruling that “[i]f, in the regular course of employment a driver is, or could be, called upon to transport a shipment in interstate commerce the driver would be subject to the [Federal Highway Administration’s] jurisdiction.” Rules and REGULATIONS OF THE DEPARTMENT OF TRANSPORTATION, FedeRal Highway AdmiNistRAtion, supra, 46 FR 37902-02, 1981 WL 115508 at *37902. Moreover, [e]vidence of driving in interstate commerce or being subject to being used in interstate commerce should be accepted as proof that the driver is subject to 49 U.S.C. § 304 for a 4-month period from the date of the proof. The FHWA believes that the-4-month period is reasonable because it avoids both the too strict week-by-week approach and the situation where a driver could be used or be subject to being used once and remain subject to jurisdiction under 49 U.S.C. § 304 for an unlimited time. Id. at *37903. The" }, { "docid": "9755476", "title": "", "text": "hours of service of employees of, and safety of operation and equipment of, a motor carrier____” The Secretary has the power to set maximum hours for drivers if the company engages in more than de minimis interstate commerce, and that includes a company that holds itself out as an interstate company and solicits that business even though its prospect of obtaining much of that business is poor and some of its drivers never drive in interstate commerce. See Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947); Reich v. American Driver Service, Inc., 33 F.3d 1153 (9th Cir.1994); Marshall v. Aksland, 631 F.2d 600 (9th Cir.1980); Brennan v. Schwerman Trucking Co. of Virginia, Inc., 540 F.2d 1200 (4th Cir.1976). That does not mean, however, that the Secretary of Transportation has automatic jurisdiction over all drivers of an interstate carrier. Pursuant to a notice of interpretation, 46 Fed.Reg. 37,902, 37,903 (1981), to which we defer, jurisdiction extends only to drivers who reasonably could be expected to make one of the carrier’s interstate runs, and that means more than a remote possibility. Reich v. American Driver Service, Inc., supra, at 1156 and n. 4. We are not concerned here with private carriage. Defendant is both a motor common carrier and a motor contract carrier, with appropriate certification. Its Pace contract involves solely intrastate business, but it also operates an interstate charter business, a Sears/O’Hare shuttle and airport emergency services. Both of the last two services are in interstate commerce for the purposes of the Secretary of Transportation’s authority. Car clearly is engaged in interstate commerce. The only issue is whether or not it has been clearly established that plaintiff could reasonably be expected to make one of the interstate runs, whether or not he actually did so. We turn then to the record evidence. Plaintiff was employed by Car as a driver for two periods: July 12, 1993 to December 16,1994, and February 20,1995 to October 9, 1995. When he was first employed he signed a form acknowledging that he “may be asked to assist the Charter Department" }, { "docid": "15960453", "title": "", "text": "of interstate driving is remote.” Id. (emphasis added). As the case law bears out, a driver is not exempt under the Motor Carrier Act merely because he takes one or two interstate trips. See, e.g., Crooker v. Sexton Motors, Inc., 469 F.2d 206, 211 (1st Cir.1972) (court remanded case for determination regarding weeks in which an employee performed no interstate driving; and, as to those weeks the transportation exemption did not apply and overtime compensation was due). In fact, as stated earlier, at the time Morris v. McComb was handed down, DOT (then the ICC) used a week-by-week analysis of driver’s activities to determine whether the ICC had jurisdiction. Thus, the Supreme Court indicated that a driver’s status may char,6e from week to week. Because the week-by-week determination placed too much burden on employers as well as the agencies with fluctuating jurisdiction, later, as delineated in DOT’S 1981 interpretation, a “4-month rule” was put into place. The mere existence of the one-week and/or four-month rules compels the conclusion that, while DOT may have jurisdiction over any given driver at any given time, merely having jurisdiction over one driver or several drivers does not render all drivers of any given employer subject to the jurisdiction of DOT and, correspondingly, foreclosed from the benefits of the FLSA. Thus, in light of DOT’s interpretation, where, as here, Circle A claims that DOT has jurisdiction over all of its drivers, including those who have not driven in interstate commerce, Circle A must present evidence that, during the relevant time period (i.e., December 9, 1983, through April 23,1986): (1) Circle A engaged in interstate commerce; and (2) that all of its drivers could reasonably have been expected to make interstate runs. FHWA, DOT Notice of Interpretation, 46 Fed.Reg. at 87,-903. Absent such evidence, however, and construing the applicable exemption narrowly against Circle A as the employer, such drivers are entitled to coverage under the overtime provisions of the FLSA. 2. DOT has jurisdiction to determine which employees fell within motor carrier exemption between December 1983 and April 1986. In Marshall v. Union Pac. Motor Freight" }, { "docid": "21560019", "title": "", "text": "of [the Fair Labor Standards Act, 29 U.S.C. § 207] shall not apply with respect to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49....” 29 U.S.C. § 213(b)(1). The Secretary of Transportation has the authority to prescribe the qualifications and the maximum hours of service or employees of “motor carriers.” 49 U.S.C. § 3102(b). Under 49 U.S.C. § 10102(13) a “motor carrier” can be either a “motor contract carrier” or a “motor common carrier.” A “motor contract carrier” is defined as a “person providing motor vehicle transportation of property for compensation under continuing agreements with one or more persons.” 49 U.S.C. § 10102(15)(B). In order to be considered a motor contract carrier, and therefore exempt from the maximum hours requirements of FLSA, a corporation need not have all of its drivers actually undertake trips across state lines, but rather, all of its drivers must have a reasonable expectation that they will engage in interstate commerce. Morris v. McComb, 332 U.S. 422, 434, 68 S.Ct. 131, 136-37, 92 L.Ed. 44 (1947). All of its drivers can be said to have a reasonable expectation of engaging in interstate commerce if the carrier’s work is “shared indiscriminately,” that is, if it is apportioned in such a way as to ensure that all drivers are likely to engage in interstate commerce. Id. at 433, 68 S.Ct. at 136; Marshall v. Aksland, 631 F.2d 600, 602 (9th Cir.1980); Brennan v. Schwerman Trucking Co., 640 F.2d 1200, 1205 (4th Cir.1976). It is undisputed that American Driver is a motor contract carrier that has engaged in some interstate commerce. It is also undisputed that the manner in which American Driver assigns its work, first in/first out, is an indiscriminate system of apportioning work as contemplated in Morris v. McComb and Brennan v. Schwerman Trucking. Thus, the only question remaining is whether American Driver has established that all of its drivers were in a position to be called upon to drive in interstate commerce and therefore" } ]

[ { "docid": "2710564", "title": "", "text": "re Anderson, 936 F.2d 199, 204 (5th Cir.1991) (per curiam). This is particularly true when the attorney fails to seek prior approval of employment. Id. Section 329 applies to services rendered in connection with a bankruptcy proceeding. In re Hargis, 895 F.2d 1025, 1026 (5th Cir.1990) (on rehearing). It permits the bankruptcy court to regulate the extent of attorney compensation. Where the fees have been paid to an unapproved attorney, the return of the compensation is an appropriate remedy. Land, 943 F.2d at 1267; see In re Chapel Gate Apartments, Ltd., 64 B.R. 569, 575 (Bankr.N.D.Tex.1986) (failure of counsel to obey mandate of Bankruptcy Code and Rules is basis for requiring the return of sums paid). The bankruptcy court acted pursuant to its authority to approve employment of attorneys and regulate their fees when it ordered disgorgement. Nor did the bankruptcy court effectively hold Wright in contempt when it disbarred him. Although there are cases that analyze the bankruptcy court’s authority to discipline lawyers in the context of that court’s contempt power, see, e.g., In re Assaf, 119 B.R. 465, 467 (E.D.Pa.1990) (bankruptcy court had power to enter suspension order pursuant to civil contempt authority), others recognize the bankruptcy court’s inherent and statutory power and authority to disbar attorneys not for the purpose of punishment, but to protect the courts and the public from persons unfit to practice, see, e.g., In re Derryberry, 72 B.R. 874, 881 (Bankr.N.D.Ohio 1987). The bankruptcy court expressly invoked its inherent authority and the provisions of this court’s Local Rule 13.2, made applicable to the bankruptcy court by that court’s Local Rule 9034, when it ordered Wright disbarred. The Fifth Circuit implicitly recognized in In re Johnson, 921 F.2d 585 (5th Cir.1991), that bankruptcy judges may discipline lawyers both in the context of contempt and of disciplinary proceedings. In Johnson the bankruptcy judge entered what he denominated as a contempt order. The order included a one year suspension from practice in the bankruptcy court. Id. at 586. The question before the Fifth Circuit was whether the bankruptcy judge should have recused himself from presiding in" } ]

[ { "docid": "19912338", "title": "", "text": "(a). (c) When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1) or if the representation in reasonable probability will involve a violation of Rule 1.05. Tex. Disciplinary R. Prof’l Conduct 1.09, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A, Art. 10, § 9 (Vernon 2005). Under Texas Rule 1.09(b), the personal conflicts of one attorney are imputed to all other members of a firm. Id. 1.09(b). Comment 7 to Rule 1.09 states that this imputation can be removed when an attorney leaves a firm, stating that “should ... other lawyers cease to be members of the same firm as the lawyer affected by paragraph (a) without personally coming within its restrictions, they thereafter may undertake the representation against the lawyer’s former client unless prevented from doing so by some other of these Rules.” See id. 1.09 cmt. 7 (emphasis added). The Texas Rules and the accompanying comments do not expressly describe the burden of proof or who bears the burden on the issue of whether a lawyer personally came within the restrictions of Rule 1.09(a). The Texas Supreme Court has not yet addressed the application of Texas Rule 1.09 to this precise fact pattern. The relevant Model Rule, Rule 1.9(b), uses slightly different language than the Texas Rule: A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. Model Rules of Prof’l Conduct R. 1.9(b) (2006). Regardless of linguistic differences, the two codes produce the same result in application — they both require that a departing lawyer must" }, { "docid": "17417382", "title": "", "text": "writ denied) (“Contracting parties ordinarily use best efforts language when they are uncertain about what can be achieved, given their limited resources. Nonetheless, to be enforceable, a best efforts contract must set some kind of goal or guideline against which best efforts may be measured.”). . See Tex Disciplinary R. Prof’l Conduct 1.04(d), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Vernon 1998) (\"A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined.”). . Although Gonzalez contends that he was retained to employ both judicial and extrajudicial means to recover the frozen funds, the agreement contemplates the use of extrajudicial methods when it states that \"Gonzalez will comply with all laws and /or Bank Regulations of the Cayman Islands and the United States in recovering these funds.” . 23 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 63:29, at 539 (4th ed.2002). . Id. § 63:60, at 689. . Placid Oil Co. v. Humphrey, 244 F.2d 184, 187 (5th Cir.1957) (citations omitted). . Taylor Pub. Co. v. Sys. Mktg. Co., 686 S.W.2d 213, 217 (Tex.App.-Dallas 1984, writ ref'd n.r.e.); see Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (Tex Comm’n App.1937, judgm't adopted). . Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex.App.-Corpus Christi 1989, no writ) (citing Universal Life & Accident Ins. Co. et al., 102 S.W.2d at 406). . Restatement (Second) of Contracts § 254 (1981). . See Koch Indus., Inc. v. Sun Co., Inc., 918 F.2d 1203, 1209 n. 3 (5th Cir.1990) (\"If a contract does not set a time for performance, the law will imply a duty to perform within a reasonable time; what is reasonable is a ques-lion for the finder of fact.”) (citing M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d" }, { "docid": "4064696", "title": "", "text": "ORDER LAMAR W. DAVIS, JR., Chief Judge. The issue before the Court is whether amendments to the Bankruptcy Code, which become effective today, regulating Debt Relief Agencies apply to attorneys licensed to practice law who are members of the Bar of this Court. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”) established new and significant restrictions on the activities of debt relief agencies. 11 U.S.C. §§ 526, 527 and 528. They require “debt relief agencies” who render “bankruptcy assistance” to enter written contracts with “assisted persons,” disclose the extent of services provided and fees charged, and disclose clearly and conspicuously in all advertising that their services contemplate bankruptcy. § 528. They are required to provide a detailed written notice to all “assisted persons” of the disclosure requirements of the Code, the obligation of accuracy and truthfulness on those disclosures, and that failure to comply with those requirements carry potential civil and criminal sanctions. § 527. They are required to advise the “assisted person” that the person may proceed pro se, or may hire an attorney, or may hire a bankruptcy petition preparer, and that only attorneys and not petition preparers can render legal advice. Id. They are required to provide the “assisted person” with information on how to value assets, how to complete bankruptcy schedules, and how to determine what property is exempt. Id. Debt relief agencies are prohibited from failing to provide the services they contracted to provide, counseling any person to make false statements, or advising the person “to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy petition preparer .... ” § 526(a)(4) (emphasis added). Section 526(c) creates civil liability for violation of the duties enumerated. It also grants to the Court the right “on its own motion” or that of the United States Trustee or a debtor to enjoin violations or impose civil remedies. This grant complements the inherent authority of a Court to regulate the practice of the members of its Bar, as embodied in this District in Southern District" }, { "docid": "118983", "title": "", "text": "another way of addressing the larger question of what constitutes a “reasonable” fee, mirroring language found in most codes of professional responsibility. See Model Rules of PROf’l CONDUCT R. 1.5; Model Code of PROf’l Responsibility DR 2-106 (1980); Tex. Gov’t Code AnN., Title 2, Subtitle G-Appendix A-l, Rule 1.04 (Vernon 2005) (Texas Rules of Disciplinary Procedure). Even a flat fee, to be reasonable, should represent compensation commensurate with the nature of the services rendered, and considering the time spent and the actual cost of rendering the service helps a court to evaluate the reasonableness of the flat fee. The services rendered should be performed within a reasonable time, as required by factor (4), regardless the method of billing. Factor (5) is also relevant, though it is often difficult for a bankruptcy judge to get to this sort of information simply because (a) most non-bankruptcy consumer services are rendered in other forums with which the bankruptcy judge typically has little or no contact and (b) the small amount of fees involved for any given service will not justify the expense of taking evidence from “experts” from the non-bankruptcy consumer practice. Factor (3), of all the factors, is the one having the most relevance (and importance) to the allowance of fees to debtor’s counsel in the chapter 13 context. In this factor, a court is to evaluate “whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of [the case].” See 11 U.S.C. § 330(a)(3)(C). Thus, benefit to the estate or necessity of the services rendered to the administration of the case ought to be considered in determining whether the fees sought are reasonable, even though the first test of reasonableness is still whether the fees were beneficial to the debtor and necessary in order to ensure proper representation of the interests of the debtor. See 11 U.S.C. § 330(a)(4)(B). Congress, to be sure, wanted to assure that debtors in chapter 13 cases were adequately represented. Congress was just as concerned, however, that those fees pass the scrutiny of" }, { "docid": "23419498", "title": "", "text": "entitled \"Unauthorized Practice of Law,” and § 81.101 defines \"practice of law” as \"any service requiring the use of legal skill or knowledge,” it appears that the Texas legislature sought to prohibit nonlawyers from exercising legal skill or knowledge in the preparation of legal documents. This view is supported by an interpretative opinion issued by the Texas Attorney General. See Op. Tex. Atiy. Gen. JM-943, 1988 WL 406255, at *2 (1988) (\"What is meant in [chapter 83] by the ‘preparation of legal instruments’ must be decided with reference to the practice of law.”). . See Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (holding that provision in Endangered Species Act allowing any person to bring a lawsuit to enforce compliance with procedural requirements could not vest standing in plaintiff who had not suffered an injury). . Maynard, for example, states: \"The important point ... is that the focus of the issue truly is on the overall 'program,' as the district court correctly noted in its opinion.\" Ruiz states that \"the very nature of the arrangement between Peirson & Patterson and Countrywide is prohibited by Texas law governing the conduct of lawyers.\" . Rule 5.04 states that \"a lawyer or law firm shall not share or promise to share legal fees with a non-lawyer.” Tex Disciplinary R. Prof'l Conduct 5.04(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9). .Nevertheless, we note our inability to discern a meaningful distinction between the Countrywide-Peirson & Patterson fee arrangement characterized by Ruiz as \"systematic,” and the salary typically paid to a secretary at a law firm, which Plaintiffs concede is permissible under § 83.002. Both fees are pre-determined, scaled, and split from a lawyer's profits. Given that § 83.002 presupposes payments for secretarial or paralegal work, Rule 5.04 cannot be as constraining as Ruiz would have us believe. . It is also worth noting that the Texas Disciplinary Rules of Professional Conduct are promulgated by the Texas Supreme Court, while chapter 83 is" }, { "docid": "12219092", "title": "", "text": "right to effective counsel once the state has successfully obtained discretionary review in the Court of Criminal Appeals. We express no view as to whether a defendant in Blankenship's circumstance has the right to effective counsel to oppose the state's request for such discretionary review. . See Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 354, 102 L.Ed.2d 300 (1988) (\"Because the fundamental importance of the assistance of counsel does not cease as the prosecutorial process moves from the trial to the appellate stage, the presumption of prejudice must extend as well to the denial of counsel on appeal.”) (citation omitted); Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir.1989). . Under Texas law, Lantrip remained Blankenship's attorney. See Tex.Code Crim. Proc. Ann. art. 26.04(a) (Vernon 1989) (\"An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.”); Ward v. Texas, 740 S.W.2d 794, 796-97 (Tex.Crim.App.1987) (en banc); see also Tex Disciplinary R. Prof’l Conduct 1.15(d), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon Supp.1997) (Tex State Bar R. art. X, § 9) (\"Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client....”)." }, { "docid": "3020504", "title": "", "text": "the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it.’ ” Malautea v. Suzuki Motor Co., 987 F.2d 1586, 1545 (11th Cir.1993), quoting Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir.1985), which quoted Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 888 (5th Cir.1968). The obligations of an attorney to a court changes over time as ethical rules and rules of procedure are revised, hopefully with input from both bench and bar. However, such modifications are only indirectly related to the dynamics inherent to attorney-client relationships. For example, even though Colo. R. PROf’l Conduct 1.2(c) allows unbundling of legal services, an attorney remains obligated to comply with Colo.R.Civ.P. 11(b). In the same vein, no client can authorize an attorney to engage or assist a client in engaging in conduct that is criminal or fraudulent. Colo. Rules of PROf’l Conduct 1.2(d). Both Mr. Zurinskas and the U.S. Trustee have confused Mr. Zurinskas’ duties. The limitation of Mr. Zurinskas’ services to the Debtor grew out of the attorney-client relationship, but his duty to sign the petition was owed to the Court and legal system. Mr. Zurinskas incorrectly assumed that his agreement with the Debtor excused his obligation to the Court. The U.S. Trustee mistakenly invokes § 329(b), which focuses on the attorney-client relationship, to enforce Mr. Zurinskas’ obligations to the court. Reduction or recoupment of Mr. Zurins-kas’ fees pursuant to § 329(b) for a violation of Rule 9011 is not appropriate. Rule 9011 provides its own enforcement mechanism. Mr. Zurinskas’ error is a technical breach of Rule 9011(a) which can be corrected by filing an amended petition bearing his signature and fifing an amended Rule 2016 disclosure which reflects the limitation in the scope of his representation of the Debtor. B. Failure to Attend the Section 341 Meeting. The U.S. Trustee also seeks recoupment of fees pursuant to § 329(b) for Mr. Zu-rinskas’ failure to attend the Debtor’s Section 341 meeting. Paralleling the Court’s prior analysis with regard to signing the petition, the first issue is whether Mr. Zurinskas had a duty to" }, { "docid": "2204154", "title": "", "text": "local rules of this court require that before a member of the bar of this court may be barred or suspended from practice, the court must afford the member \"notice and an opportunity\" to be heard. See Local Rule (Bankr.W.D.Mich.) 2093(a); 11 U.S.C. § 102(1). Because \"notice and an opportunity to be heard” is a flexible concept in bankruptcy, the undersigned judge believes it may be reasonable to construe this local rule as not necessarily requiring an en banc hearing, but only as requiring \"a majority vote\" of all the judges of this court. Local Rule (Bankr.W.D. Mich.) 2093(a). In any event, after referral, the bankruptcy judges will decide whether a supplemental hearing will take place, or whether a review of the existing record is sufficient. Cf. In re Ludwick, 185 B.R. at 238 (initial hearing held before Judge Stevenson but continued to another en banc hearing to consider possible suspension; however, some nonsuspension issues were determined by Judge Stevenson at the initial hearing). . Section 329 of the Code provides that if the compensation of a debtor's attorney for legal services \"exceeds the reasonable value of any such services, the court may ... order the return of any such payment, to the extent excessive....” 11 U.S.C. § 329(b). . See State Bar Exh. 3A & 3B. . See Texas Rules of Disciplinary Procedure, Part IX (Reciprocal Discipline) (reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (West 1999)). . Any misconception by Rittenhouse that opening an office in Texas or Wisconsin will somehow authorize the practice of law in Michigan, or immunize him from future consequences, will not receive a welcome reception by the undersigned judge. See Tr. at 118. Rittenhouse should not attempt to engage in gamesmanship with this court and further is advised lo refrain from the unauthorized practice of law in Michigan, regardless of where he (actually or constructively) hangs his legal hat. See Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 5 (noting, in dicta, that physical presence in the state is" }, { "docid": "7276584", "title": "", "text": "the debtor’s counsel if he or she felt threatened, or that the client relationship was unreconeilable such that he or she could not properly represent the debtor. The reasonable attorney would not have simply refrained from making any appearance or taking any action in the bankruptcy case. Here, it was not until the Trustee sent Nuttall a letter following up on the Debtors’ testimony at the initial § 341 Meeting that Nuttall first indicated that he was allegedly having issues with the Debtors. (Trustee Resp. at p. 9). The e-mail exchange between Nuttall and the Trustee clearly shows that Nuttall was aware that the Debtors had terminated his legal services in February 2012. (Id. at pp. 9,12). In conclusion, Nuttall violated FRBP 9011(b)(3) by submitting (and in some cases signing) documents that lacked evi-dentiary proof, namely, that the Debtors reviewed and physically signed the petitions and other statements under the penalty of perjury. Sanctions for violating FRBP 9011 are “limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.” Fed.R.Bankr.P. 9011(c)(2). This may include disgorgement of attorneys fees pursuant to Section 329. See In re Spickelmier, 469 B.R. at 914-15. Section 329 provides that the court may order the disgorgement of fees if the “compensation exceeds the reasonable value” of legal services. 11 U.S.C. § 329(b). Whether an attorneys compensation exceeds the reasonable value is determined on a case by case basis, based on if “the work done was excessive or of poor quality.” See In re Spickelmier, 469 B.R. at 914, citing 3 Collier on Bankeuptcy ¶ 329.04[1] (Alan N. Resnick and Henry J. Sommer, eds., 16th ed. 2012); Hale v. U.S. Trustee (In re Basham), 208 B.R. 926, 933 (9th Cir. BAP 1997). Here, Nuttall’s representation of the Debtors reflects both a lack of competence and diligence. The Debtors paid Nuttall $1,500 to file a Chapter 7 bankruptcy case. Rather than ensuring that he took care in filing his first bankruptcy case as required by statute and applicable procedural rules, Nuttall paid an “experienced bankruptcy paralegal” to prepare the “bankruptcy" }, { "docid": "23419499", "title": "", "text": "states that \"the very nature of the arrangement between Peirson & Patterson and Countrywide is prohibited by Texas law governing the conduct of lawyers.\" . Rule 5.04 states that \"a lawyer or law firm shall not share or promise to share legal fees with a non-lawyer.” Tex Disciplinary R. Prof'l Conduct 5.04(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9). .Nevertheless, we note our inability to discern a meaningful distinction between the Countrywide-Peirson & Patterson fee arrangement characterized by Ruiz as \"systematic,” and the salary typically paid to a secretary at a law firm, which Plaintiffs concede is permissible under § 83.002. Both fees are pre-determined, scaled, and split from a lawyer's profits. Given that § 83.002 presupposes payments for secretarial or paralegal work, Rule 5.04 cannot be as constraining as Ruiz would have us believe. . It is also worth noting that the Texas Disciplinary Rules of Professional Conduct are promulgated by the Texas Supreme Court, while chapter 83 is a duly enacted statute by the state legislature. . Ruiz cannot make this argument, because Peirson & Patterson employees (attorney and non-attorney), not Countrywide employees, select and generate the mortgage forms in the wholesale division. The only practice performed by Countrywide employees in every wholesale transaction is data entry, a practice that even Ruiz does not argue is non-secretarial. As for Peirson & Patterson's potential liability for permitting its non-attorney employees to select and generate forms, the analysis is the same as for Countrywide's retail division in Maynard. . Allison, 151 F.3d at 413 (\"[A]s claims for individually based money damages begin to predominate, the presumption of cohesiveness decreases while the need for enhanced procedural safeguards ... increases.”) (citation omitted); Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir.1986) (\"stating that claims are unsuitable for class treatment when individual questions, such as reliance and damages, predominate over class questions”) (emphasis added). But see Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 298 (5th Cir.2001) (\"Although calculating damages will require some individualized determinations, it" }, { "docid": "19422033", "title": "", "text": "neither the U.S. Trustee nor Schaller relies then on inherent authority, no more need be said here. As to the second and most common type of authority, the statutes and rules abound with authorization to the courts in this realm. See, e.g. , 28 U.S.C. § 1927 (power to assess cost, expenses and attorneys' fees against counsel who multiplies the proceedings in any case unreasonably and vexatiously); Fed. R. Civ. P. 11(c) (\" Rule 11\") (sanctions for improper representations to the court); Fed. R. Civ. P. 37(b)(2) (sanctions available for failure to make disclosures or cooperate in discovery); Fed. R. Bankr. P. 9011 (mirroring in most respects Rule 11 sanctions). In bankruptcy matters, the court also holds special power of attorneys' retention and compensation. See 11 U.S.C. §§ 327 - 330. While the U.S. Trustee does not rely on these forms of direct, specific authority, as is discussed below, Schaller presents much of his defense as if this is a Rule 11/Bankruptcy Rule 9011 matter. This merits more discussion, which the court will provide after considering the remaining two types of authority. Third, as noted in Chambers , among the \"powers incidental to all courts is the authority to 'control admission to its bar and to discipline attorneys who appear before it ....' \" United States v. Johnson , 327 F.3d 554, 560 (7th Cir. 2003) (citing Chambers , 501 U.S. at 43, 111 S.Ct. 2123 ). In the Northern District of Illinois, the bankruptcy bar is made of attorneys admitted to practice before the District Court. Bankr. N.D. Ill. R. 2090-1(A). There is no separate admission to practice before the bankruptcy court. As such, this authority rests primarily with the District Court, which has in the exercise of that authority adopted rules of professional conduct. N.D. Ill. R. 83.50; see also Bankr. N.D. Ill. R. 9029-4A (making the District Court rules of professional conduct directly applicable in bankruptcy matters). The District Court has also enacted rules of disciplinary procedure. N.D. Ill. R. 83.25-83.30 (the \"NDIL Disciplinary Rules\"). Those rules contain a savings provision, reserving for \"a district judge, magistrate" }, { "docid": "19422041", "title": "", "text": "types of authority, the U.S. Trustee has predicated this action solely under section 105. Mtn., at pp. 11-12. The court agrees with this choice. Like the inherent powers of the court, section 105 allows the court to address conduct without extensive and needless satellite litigation. An action under section 329 of the Bankruptcy Code, for example, would appear to necessitate the reopening of Tabor I and bringing of a parallel motion there to capture those fees, as the scope of section 329 appears limited to the case in which it is brought. 11 U.S.C. §§ 329(a), (b). Section 105's power, on the other hand, does not appear so limited, speaking instead to \"the provisions of this title.\" 11 U.S.C. § 105(a). Actions under Bankruptcy Rule 9011 focus on the representations to the court, and only focus on conduct insofar as it underlies those representations, and the Bankruptcy Court Disciplinary Rules, while perhaps better suited to catch behavior in unrelated cases, are by their terms limited to violations of the NDIL Disciplinary Rules. Further, as the foregoing cases make clear, section 105's power can coexist with those available under more specific statutes or rules, and in a parallel manner to the application of the court's inherent authority in such situations, section 105 may be the sole authority for relief when such a broader source of authority is justified. The actions complained of here are varied and strike to the very heart of practice before this court. Section 105 is, therefore, exactly the source of authority under which this action can and should be propounded. C. Standards under Section 105 As noted above, each type of authority has its own scope and predicates, burdens and remedies. Per the express terms of section 105, the action must be necessary or appropriate. 11 U.S.C. § 105(a). But what other limitations on scope and predicates apply? First and foremost, the action must be limited in scope to the matters arising within the boundaries of the Bankruptcy Code and bankruptcy matters. Disch v. Rasmussen , 417 F.3d 769, 777 (7th Cir. 2005). Bankruptcy judges do not" }, { "docid": "118982", "title": "", "text": "the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C. § 330(a)(3)(A)-(E). In the chapter 13 context, some of these factors take on less importance, simply because, in the consumer bankruptcy practice, attorneys do not generally have an hourly rate per se. Instead, they tend to set a flat fee for specific categories of services. In some ways, their method of billing resembles the way legal services are rendered to consumers outside bankruptcy — set fees for uncontested divorce petitions, or simple wills, or residential leases. Like their counterparts in the non-bankruptcy context, however, they may well charge by the hour or by service for extra services that go beyond the base service. Factors (1) and (2) in section 330(a)(3) seem to presume hourly rate billing, and so are not as relevant in the chapter 13 context. Still, while less relevant, factors (1) and (2) are not entirely irrelevant in the chapter 13 context either. Factors (1) and (2) are but another way of addressing the larger question of what constitutes a “reasonable” fee, mirroring language found in most codes of professional responsibility. See Model Rules of PROf’l CONDUCT R. 1.5; Model Code of PROf’l Responsibility DR 2-106 (1980); Tex. Gov’t Code AnN., Title 2, Subtitle G-Appendix A-l, Rule 1.04 (Vernon 2005) (Texas Rules of Disciplinary Procedure). Even a flat fee, to be reasonable, should represent compensation commensurate with the nature of the services rendered, and considering the time spent and the actual cost of rendering the service helps a court to evaluate the reasonableness of the flat fee. The services rendered should be performed within a reasonable time, as required by factor (4), regardless the method of billing. Factor (5) is also relevant, though it is often difficult for a bankruptcy judge to get to this sort of information simply because (a) most non-bankruptcy consumer services are rendered in other forums with which the bankruptcy judge typically has little or no contact and (b) the small amount of fees involved for any given service will" }, { "docid": "3020481", "title": "", "text": "MEMORANDUM OPINION AND ORDER MARCIA S. KRIEGER, Chief Judge. THIS MATTER comes before the Court on the United States Trustee’s Motion to Examine Fees Charged in the Case (Motion) and the Response of Debtor’s Counsel, William E. Zurinskas, Esq. Oral argument and offers of proof were made by Leo Weiss on behalf of the United States Trustee’s Office and by William Zurinskas, appearing pro se. Having considered the Motion, Response, offers of proof and oral argument, the Court makes the following findings and conclusions: I.JURISDICTION This Court has jurisdiction in this matter pursuant to 28 U.S.C. §§ 1334(a) and (e). Because it concerns general administration of the bankruptcy estate, this is a core matter. 28 U.S.C. § 157(b)(2)(A). II.ISSUES PRESENTED This is a Chapter 7 case in which the U.S. Trustee seeks disgorgement of legal fees pursuant to 11 U.S.C. § 329(b). The U.S. Trustee argues that Mr. Zurinskas’ $399.00 fee is excessive due to his failure to: 1) sign the Debtor’s petition; and 2) attend the Debtor’s first meeting of creditors (Section 341 meeting). According to the U.S. Trustee, Mr. Zurinskas’ failure to sign the petition he prepared for the Debt- or constitutes impermissible “ghostwriting” violative of Fed.R.Bankr.P. 9011, case law in this district and Administrative Order 1999-6 of the United States District Court for the District of Colorado (Administrative Order 1999-6). The U.S. Trustee further argues that Mr. Zurinskas was required to attend the Debtor’s Section 341 meeting and that his failure to do so warrants sanction by fee reduction. Mr. Zurinskas admits that he failed to sign the petition and attend the Debtor’s Section 341 meeting. He did so because such services exceeded those authorized by his client. He contends that his fee for pre-petition services is reasonable and that it should not be reduced or disgorged under § 329(b) because his representation of the Debtor was properly limited in accordance with Colo. R. PROf’l Conduct 1.2(c). He urges the Court to interpret Fed. R.Bankr.P. 9011, case law addressing “ghostwriting” of pleadings by attorneys for pro se litigants and Administrative Order 1999-6 to allow limited or unbundling" }, { "docid": "17417381", "title": "", "text": "contract must be considered as a whole. Moreover, each part of the contract should be given effect.”). . Am. Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319, 323 (5th Cir.2001) (citing Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984)). . The cases cited by Gonzalez do not support his interpretation of the agreement as a best efforts contract. In American Satellite Co. v. United States, 998 F.2d 950 (Fed.Cir.1993), the Federal Circuit discusses a contract under the assumption that it requires best efforts without offering any analysis as to the characteristics of a best efforts contract. In Sunniland Fruit, Inc. v. Verni, 233 Cal.App.3d 892, 284 Cal.Rptr. 824 (1991), the California Court of Appeal interpreted a contract requiring Sunniland to use best efforts to market grapes, and to obtain the \"best” market prices available. Unlike the agreement in Sunniland, the agreement in this case does not use the word \"best” or any other comparable term. . CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577, 581-82 (Tex.App.-Dallas 1991, writ denied) (“Contracting parties ordinarily use best efforts language when they are uncertain about what can be achieved, given their limited resources. Nonetheless, to be enforceable, a best efforts contract must set some kind of goal or guideline against which best efforts may be measured.”). . See Tex Disciplinary R. Prof’l Conduct 1.04(d), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Vernon 1998) (\"A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined.”). . Although Gonzalez contends that he was retained to employ both judicial and extrajudicial means to recover the frozen funds, the agreement contemplates the use of extrajudicial methods when it states that \"Gonzalez will comply with all laws and /or Bank Regulations of the Cayman Islands and the United States in recovering these" }, { "docid": "2204155", "title": "", "text": "of a debtor's attorney for legal services \"exceeds the reasonable value of any such services, the court may ... order the return of any such payment, to the extent excessive....” 11 U.S.C. § 329(b). . See State Bar Exh. 3A & 3B. . See Texas Rules of Disciplinary Procedure, Part IX (Reciprocal Discipline) (reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (West 1999)). . Any misconception by Rittenhouse that opening an office in Texas or Wisconsin will somehow authorize the practice of law in Michigan, or immunize him from future consequences, will not receive a welcome reception by the undersigned judge. See Tr. at 118. Rittenhouse should not attempt to engage in gamesmanship with this court and further is advised lo refrain from the unauthorized practice of law in Michigan, regardless of where he (actually or constructively) hangs his legal hat. See Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 5 (noting, in dicta, that physical presence in the state is one factor to consider in determining whether out-of-state attorney has engaged in the unauthorized practice of law), cert. denied, 525 U.S. 920, 119 S.Ct. 291, 142 L.Ed.2d 226 (1998). . There can be no controversy about the court's findings of fact, since the facts are essentially undisputed. And, if the district court determines that Rittenhouse is, contrary to this court’s conclusion, authorized by applicable law to practice law, everyone (including the bankruptcy court en banc) will be bound by that determination. The only issue that is likely to be raised on appeal from any order involving Rittenhouse’s membership in the bar of this court is the appropriateness of the court's exercise of discretion with respect to his continued membership. . The Clerk's notice should inform debtors that Rittenhouse is not authorized to represent or advise them with respect to their bankruptcy cases, and that they may either represent themselves in propria persona, or retain substitute counsel. .The court soundly rejects Rittenhouse's implicit argument that a person can practice \"bankruptcy law” without practicing state law. See" }, { "docid": "13939382", "title": "", "text": "of funds.” Id. (citing Tex. R. App. P. 41.3). . See Kendall v. Pladson (In re Pladson), 35 F.3d 462, 466 (9th Cir.1994) (“Federal courts are not bound by dicta of state appellate courts.”) and McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir.1980) (“a federal court should be circumspect in surrendering its own judgment concerning what the state law is on account of dicta”). . See Tex. Civ. Prac. & Rem. Code Ann. § 38.005 (2014) and 7/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 38.8 (Tex.2011). . Larrison, 2011 WL 582730, at *6. . Tritt, 2014 WL 1347763, at *7 (citing Headrick v. Atchison (In re Atchison), 255 B.R. 790 (Bankr.M.D.Fla.2000) (“It is clear that Cohen does not itself create an independent right to attorney’s fees for the benefit of a party who prevails in a Section 523 dischargeability proceeding.”). . Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir.2002). . 945 S.W.2d 812, 818 (Tex. 1997). . Id. (quoting Tex. Disciplinary Rules Prof’l Conduct R. 1.04, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. X, § 9)). See also Amette, 2011 WL 3651294, at *4-5 (applying Texas law to reasonableness of attorney’s fees in bankruptcy proceeding). . ECF No. Ill at 2. . ECF No. 49. . ECF No. Ill at 2. . Kirk also refers to time entries in June, July and August 2014 and objects on the grounds that \"no recovery for time spent seeking to recover attorney's fees per ASAR-CO decision.” ECF No. Ill at 2. This is a cryptic reference, because there is more than one \"ASARCO” case relevant to the award of attorney’s fees and the Court will not guess which case Kirk had in mind. This ambiguous reference is not sufficient to deem this claim argued. If Kirk wished to raise an argument based on case law, a full citation, pin cite and detailed explanation would be required. Nevertheless, as these fees were incurred after the liability on the debt was established, Kirk’s" }, { "docid": "3020482", "title": "", "text": "According to the U.S. Trustee, Mr. Zurinskas’ failure to sign the petition he prepared for the Debt- or constitutes impermissible “ghostwriting” violative of Fed.R.Bankr.P. 9011, case law in this district and Administrative Order 1999-6 of the United States District Court for the District of Colorado (Administrative Order 1999-6). The U.S. Trustee further argues that Mr. Zurinskas was required to attend the Debtor’s Section 341 meeting and that his failure to do so warrants sanction by fee reduction. Mr. Zurinskas admits that he failed to sign the petition and attend the Debtor’s Section 341 meeting. He did so because such services exceeded those authorized by his client. He contends that his fee for pre-petition services is reasonable and that it should not be reduced or disgorged under § 329(b) because his representation of the Debtor was properly limited in accordance with Colo. R. PROf’l Conduct 1.2(c). He urges the Court to interpret Fed. R.Bankr.P. 9011, case law addressing “ghostwriting” of pleadings by attorneys for pro se litigants and Administrative Order 1999-6 to allow limited or unbundling of representation of debtors in bankruptcy cases. Unbundling or limited representation of debtors in bankruptcy cases is necessary, he contends, to provide legal representation at an affordable cost. Although these arguments raise important questions about an attorney’s obligations when representing a debtor in a bankruptcy case, this controversy focuses upon 11 U.S.C. § 329(b). Pursuant to § 329(b), excessive fees paid to counsel for a debtor may be reduced or recouped. The issues to be resolved are: 1) whether the fee paid to Mr. Zurinskas for pre-petition services was excessive; and 2) whether Mr. Zurinskas’ limitation of services otherwise renders his pre-petition fee excessive. III.UNDISPUTED FACTS At the time of oral argument, the parties were given an opportunity to request an evidentiary hearing. Neither did. Instead, both parties presented legal argument laced with factual references, which the Court treats as an offer of proof. Taken as true, the following facts are undisputed: 1. Mr. Zurinskas is an attorney licensed to practice in Colorado and admitted to practice before this Court. He has represented many debtors" }, { "docid": "19912337", "title": "", "text": "in the context of the relevant ethical criteria and with meticulous deference to the litigant’s rights.” Id. at 1314 (citing Church of Scientology of Cal. v. McLean, 615 F.2d 691, 693 (5th Cir.1980)). Stated plainly, this sanction “must not be imposed cavalierly.” Id. at 1316. Texas Rule 1.09 states: (a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: (1) in which such other person questions the validity of the lawyer’s services or work product for the former client; (2) if the representation in reasonable probability will involve a violation of Rule 1.05 [dealing with confidential client information]; or (3) if it is the same or a substantially related matter. (b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a). (c) When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1) or if the representation in reasonable probability will involve a violation of Rule 1.05. Tex. Disciplinary R. Prof’l Conduct 1.09, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A, Art. 10, § 9 (Vernon 2005). Under Texas Rule 1.09(b), the personal conflicts of one attorney are imputed to all other members of a firm. Id. 1.09(b). Comment 7 to Rule 1.09 states that this imputation can be removed when an attorney leaves a firm, stating that “should ... other lawyers cease to be members of the same firm as the lawyer affected by paragraph (a) without personally coming within its restrictions, they thereafter may undertake the representation against the lawyer’s former client unless prevented from doing so by some other of these Rules.” See id." }, { "docid": "19422032", "title": "", "text": "the federal courts have the power to punish for contempts, to vacate judgments if procured through fraud, control courtroom behavior and assess costs and award fees. Id. ; see also Law v. Siegel , 571 U.S. 415, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014) (recognizing the inherent power of the bankruptcy court to sanction 'abusive litigation practices') (quoting Marrama v. Citizens Bank of Mass. , 549 U.S. 365, 375-376, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007) ). The Seventh Circuit has stated that \"[a] sanctioning court should ordinarily rely on available authority conferred by statutes and procedural rules, rather than its inherent power, if the available sources of authority would be adequate to serve the court's purposes.\" Rimsat , 212 F.3d at 1048-49 (citing Chambers , 501 U.S. at 50, 111 S.Ct. 2123 ; Corley v. Rosewood Care Ctr., Inc. of Peoria , 142 F.3d 1041, 1058-59 (7th Cir. 1998) ). Though section 105 mirrors in many ways these inherent powers, section 105 is a statutory grant of authority, not an inherent power. Because neither the U.S. Trustee nor Schaller relies then on inherent authority, no more need be said here. As to the second and most common type of authority, the statutes and rules abound with authorization to the courts in this realm. See, e.g. , 28 U.S.C. § 1927 (power to assess cost, expenses and attorneys' fees against counsel who multiplies the proceedings in any case unreasonably and vexatiously); Fed. R. Civ. P. 11(c) (\" Rule 11\") (sanctions for improper representations to the court); Fed. R. Civ. P. 37(b)(2) (sanctions available for failure to make disclosures or cooperate in discovery); Fed. R. Bankr. P. 9011 (mirroring in most respects Rule 11 sanctions). In bankruptcy matters, the court also holds special power of attorneys' retention and compensation. See 11 U.S.C. §§ 327 - 330. While the U.S. Trustee does not rely on these forms of direct, specific authority, as is discussed below, Schaller presents much of his defense as if this is a Rule 11/Bankruptcy Rule 9011 matter. This merits more discussion, which the court will provide after" } ]

[ { "docid": "18645604", "title": "", "text": "from classifying a late-filed claim as an amendment on equitable principles. Bankruptcy courts appear split on the question. Compare In re Miller, 90 B.R. 317, 323 (Bankr.E.D.Tenn.1988) (must meet FRCP 15(c), despite ample notice to debtor), aff'd, 118 B.R. 76 (E.D.Tenn.1989), with In re Bajac Construction Co., 100 B.R. 524 (Bankr.E.D.Cal.1989) (relying on equities and applying broad “same generic origin” test). The question therefore is whether equity here trumps the time bar of Bankr.R. 3002(a), or whether the rule functions as a statute of limitations. We think that Congress has supplied the answer. Unlike traditional equity jurisdiction, Congress has codified the equitable power of the bankruptcy courts: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude a court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent abuse of power. 11 U.S.C. § 105(a) (1988). Generously read, the court’s power to prevent “abuse of power” includes bending the time requirements for “raising of an issue.” Equitable jurisdiction to permit amendments out-of-time does not conflict with, but rather fulfills, the statutory backdrop for bankruptcy proceedings. The bankruptcy court below therefore properly considered equitable matters outside the scope of the test of Fed.R.Civ.P. 15(c) in deciding to permit the late-filed claim as an “amendment.” This result appears to be in some tension with our holding in Wilkens v. Simon Bros., Inc., 731 F.2d 462 (7th Cir.1984) (per curiam), where we held under an earlier version of the rules that “cases construing [Bankruptcy Rule 13-302(e)(2) and the Bankruptcy Act of 1898] treat the six-month filing period as a statute of limitations not subject to extension by the bankruptcy court.” Id. at 464 (citing In re Ebeling, 123 F.2d 520 (7th Cir.1941); In re Pigott, 684 F.2d 239 (3d Cir.1982)). The Wilkens court, however, noted that filing an “informal claim” within the filing period" } ]

[ { "docid": "15969623", "title": "", "text": "Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (“Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.”). Both Bankruptcy Rule 4004(a) and Bankruptcy Rule 4004(c)(1)(D), each standing alone, are procedural rules. Cf. Hanna, 380 U.S. at 464, 85 S.Ct. 1136. But together these two apparently procedural rules alter the fresh start policy of the Bankruptcy Code by creating a gap period that provides a safe harbor for dishonest debtors. A dishonest debtor might then gain an unfair advantage because the safe harbor renders impotent information that would otherwise deny a discharge. Habash, 529 F.3d at 405. Neither § 727 nor the fresh start policy of the Bankruptcy Code permit such a result. The effect of literally applying Bankruptcy Rule 4004 in this case is to deny a party in interest the right to either object to or seek a revocation of a discharge. This denial alters that party’s substantive rights under the Bankruptcy Code contrary to the limitations of 28 U.S.C. § 2075 and could result in a discharge for a dishonest debtor. Second, Congress has directed this Court to enforce the provisions of the Bankruptcy Code which implement the fresh start policy and to prevent abuses of the Bankruptcy Code. Section 105(a) of the Bankruptcy Code provides: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a) (emphasis added). Section 105(a) gives bankruptcy courts broad authority to exercise their equitable powers — where necessary and appropriate — to implement other Bankruptcy Code provisions. Ameriquest Mortgage Co. v. Nosek (In re Nosek), 544 F.3d 34, 43 (1st Cir.2008). This power gives considerable dis cretion to bankruptcy courts, but it" }, { "docid": "8798484", "title": "", "text": "(1992). . See In re Kazi, 985 F.2d 318, 323 (7th Cir.1993) (quoted by In re Shelby, 232 B.R. 746, 750 n. 1 (Bankr.W.D.Mo.1999) (saying that it is \"well established” that the filing of an amended schedule does not reopen the time to object to the original exemptions)). . Section 105 provides, in relevant part: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a). . Although the Trustee never expressly mentioned § 105 below or in its appeal brief as to his own objection, nor did the bankruptcy court expressly rely on that provision, the Trustee stated at oral argument in this appeal that that was the basis for his objection and the ruling. . Taylor v. Freeland & Kronz, 503 U.S. at 645, 112 S.Ct. at 1649, 118 L.Ed.2d 280. . Raleigh v. Illinois Dep’t. of Revenue, 530 U.S. 15, 24-25, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) (\"Bankruptcy courts are not authorized in the name of equity to make wholesale substitution of underlying law controlling the validity of creditors’ entitlements, but are limited to what the Bankruptcy Code itself provides.”); In re Olson, 120 F.3d 98 (8th Cir.1997) (\"While the equitable powers emanating from § 105(a) are quite important in the general bankruptcy scheme, and while such powers may encourage courts to be innovative, and even original, these equitable powers are not a license for a court to disregard the clear language and meaning of the bankruptcy statutes and rules.”) (citation omitted); In re Scrivner, 535 F.3d 1258 (10th Cir.2008) (\"Section 105(a) does not empower courts to create remedies and rights in derogation of the Bankruptcy Code and Rules.”). . Although not relevant to the timeliness issue, as discussed" }, { "docid": "17388877", "title": "", "text": "these arguments are unpersuasive. The Court affirms the bankruptcy court’s decision to grant the Boyds’ motion to dismiss because Towers’ claims are time-barred. I. THE BANKRUPTCY COURT CORRECTLY HELD THAT TRUSTEE’S OBJECTION TO DEBTORS’ EXEMPTION WAS TIME-BARRED. Towers first argues that the bankruptcy court erred in holding that U.S. Supreme Court case Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), requires timely filing of an objection to a claim of exemption where actual notice of the objection was given. Alternatively, he argues that the Court should use its equitable powers under Bankruptcy Code section 105 to cure his failure to file a timely objection. A. Overview of Bankruptcy Code, Bankruptcy Rules, and Case Law Regarding Objections to Exemptions The requirements for exempting property from a debtor’s estate and for filing objections to such exemptions are governed by the bankruptcy code and rules. Bankruptcy Code section 522(l) requires debtors to list any property exempted under federal or state law, and Rule 4003(a) requires the exemptions to be listed on a schedule of assets pursuant to Rule 1007. The Boyds amended their joint bankruptcy schedule under California Code of Civil Procedure section 704.140(a), which exempts a cause of action for personal injury. See Judge Montali’s Memorandum Deci sion of May 18, 1999 (“Mem.Dec.”) at 8 n. 3. A trustee has 30 days to file an objection to an exemption claimed by a debtor on his or her amended bankruptcy schedule. Fed.R.Bankr.P. 4003(b). Absent an objection, the claimed property will be exempted from the estate. 11 U.S.C. § 522(1). The U.S. Supreme Court articulated a rule of strict interpretation for the timeliness of Rule 4003(b) objections in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the Court held that a trustee must object to a claimed exemption within the 30-day time limit, and that if a trustee fails to object within 30 days, the property is rendered exempt and the trustee is barred from contesting the validity of the exemption. 503 U.S. at 642, 112 S.Ct. 1644." }, { "docid": "8798485", "title": "", "text": "the basis for his objection and the ruling. . Taylor v. Freeland & Kronz, 503 U.S. at 645, 112 S.Ct. at 1649, 118 L.Ed.2d 280. . Raleigh v. Illinois Dep’t. of Revenue, 530 U.S. 15, 24-25, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) (\"Bankruptcy courts are not authorized in the name of equity to make wholesale substitution of underlying law controlling the validity of creditors’ entitlements, but are limited to what the Bankruptcy Code itself provides.”); In re Olson, 120 F.3d 98 (8th Cir.1997) (\"While the equitable powers emanating from § 105(a) are quite important in the general bankruptcy scheme, and while such powers may encourage courts to be innovative, and even original, these equitable powers are not a license for a court to disregard the clear language and meaning of the bankruptcy statutes and rules.”) (citation omitted); In re Scrivner, 535 F.3d 1258 (10th Cir.2008) (\"Section 105(a) does not empower courts to create remedies and rights in derogation of the Bankruptcy Code and Rules.”). . Although not relevant to the timeliness issue, as discussed more fully below, the Trustee did not neglect to object to the original exemptions, he decided not to because he considered the erroneous exemption statute to be \"immaterial,” in part because the Debtor could have claimed the real property exempt under other statutory provisions. . In re Shelby, 232 B.R. 746, 761 (Bankr.W.D.Mo.1999) (“In Taylor the Supreme Court expressly rejected the position that had been adopted by the Eighth Circuit in Halverson v. Peterson, [920 F.2d 1389 (8th Cir.1990)], that a debtor’s claimed exemption will be disallowed despite the trustee’s failure to timely object under Rule 4003(b), if the trustee is able to show that the debtor did not have a good-faith statutory basis for the claimed exemption.”). . 503 U.S. at 644-45, 112 S.Ct. at 1648-49, 118 L.Ed.2d 280. . Taylor, 503 U.S. at 644, 112 S.Ct. at 1648, 118 L.Ed.2d 280. . 11 U.S.C. § 522(d)(5). . In re Soost, 262 B.R. 68 (8th Cir. BAP 2001). . In re Wick, 276 F.3d 412 (8th Cir.2002). . See In re Smith, 2004 WL" }, { "docid": "3900412", "title": "", "text": "(1) extension of the time set for filing a dischargeability complaint under Fed. R.Bankr.P. 4007(c) or 9006; (2) relief from the order of discharge under Fed. R.Bankr.P. 9024 and Fed.R.Civ.P. 60(b); and correction of error to effect substantial justice under Fed.R.Bankr.P. 9005 and Fed. R.Civ.P. 61. None is availing. The circumstances here are both unfortunate and compelling. They invite a sympathetic exercise of equitable powers to annul a default that was not, in any direct sense, the fault of movants’ counsel. I am, however, without power to do so. “[W]hatever ... powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 968-69, 99 L.Ed.2d 169 (1988); In re SPM Manufacturing Corp., 984 F.2d 1305, 1311 (1st Cir.1993). To the extent' consistent with due process, the bankruptcy court’s powers are similarly constrained by the Federal Rules of Bankruptcy Procedure. Taylor v. Freeland & Kronz, 503 U.S. —, —, 112 S.Ct. 1644, 1649, 118 L.Ed.2d 280 (1992) (The Court has “no authority to limit the application of § 522(1)” beyond the language of Fed.R.Bankr.P. 4003(b)). See In re Walker, 149 B.R. 511, 516 (Bankr.N.D.Ill.1992) (providing relief from procedural rule’s requirement when failure to do so would abridge due process rights). 1. Extension of Time. a. Bankruptcy Rule 4007(c). The motion for extension of time (and reconsideration of its denial) are governed by Bankruptcy Rule 4007(c): A complaint to determine the discharge-ability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided in Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. (Emphasis supplied.) Although the rule authorizes the court to extend" }, { "docid": "13621762", "title": "", "text": "which can be asserted against the debtor, even if the claim sounds in personal injury, tort or wrongful death.”). See also In re Standard Insulations, Inc., 138 B.R. at 955 (Bankr.W.D.Mo.1992) (“As a matter of judicial economy the bankruptcy court must have authority to dispose of defective personal injury claims.”); In re Johns-Manville, 824 F.2d 176 (2d Cir.1987); In re C & G Excavating, 217 B.R. 64, 64 (Bankr.E.D.Pa.1998) (“[Bjankruptcy courts have jurisdiction to decide corollary issues involving the validity of a proof of claim for personal injuries or wrongful death such as whether the statute of limitations on the underlying cause of action has expired.”) (iciting Chateaugay, 111 B.R. at 75 and Standard Insulations, 138 B.R. at 951-54). Consequently, a bankruptcy court may disallow a personal injury claim based on that court’s determination that the claim, if litigated, would not be viable in light of the estate’s available defenses. The Thirty Day Provision of 11 U.S.C. 108(c)(2) Could Not Have Been Extended by the Bankruptcy Court Further, the Bankruptcy Court was without authority to extend the 30-day grace period of § 108(c)(2). See In re Danielson, 981 F.2d 296, 298 (7th Cir.1992) (reading Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) as “holding] that time limits in the Bankruptcy Code must be enforced. Courts have no standby power to excuse violations of statutes and rules.”). Compare and contrast Bank. R. 9006(b)(1), which allows extension of certain rule and order deadlines, but not statutory deadlines. See, e.g., In re Federated Food Courts, Inc., 222 B.R. 396 (Bankr.N.D.Ga.1998). In Aslanidis v. United States Lines, Inc., 7 F.3d 1067 (2d Cir.1993), the Second Circuit confirmed that the statutes of limitations run during the pendency of a bankruptcy. Id. at 1073 (“[Section] 108(c) does not provide for tolling of any externally imposed time bars, such as those found in the two maritime statutes of limitations.”). Furthermore, if a limitations period expires while litigation is stayed, there is but the 30-day extension of 11 U.S.C. § 108(c)(2) in which to file a complaint. Id. (“[section 108(c)(1) ]" }, { "docid": "18587339", "title": "", "text": "under applicable law, or constitute a roving commission to do equity.’ ” Id. (quoting United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986)). In the instant case, the use of equitable powers to sustain Perkins’ belated Objection would be inconsistent with the operation of Section 522(1), Bankruptcy Rule 4003(b), and the Supreme Court’s interpretation of these provisions in Taylor: Simply put, Perkins missed the explicit thirty-day deadline for filing objections, and Section 105(a) “does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code.” 2 Collier on Bankruptcy ¶ 105.01[3] (Lawrence P. King et al. eds., 15th ed. 1994). The bankruptcy court and the district court saw no reason to excuse Perkins’ delay, and given the Supreme Court’s holding in Taylor, the Bankruptcy Rules were properly enforced as written. Finally, Section 105(a) provides equitable powers for the bankruptcy court to use at its discretion. See In re Danielson, 981 F.2d 296, 298-99 (7th Cir.1992) (“Whatever power § 105(a) creates, it reposes in bankruptcy judges rather than appellate courts and does not upset the norm of timeliness”). The bankruptcy court found no fraud on the part of Sadkin and allowed the exemption to stand. We find nothing in the record to indicate that the bankruptcy court abused its equitable discretion in reaching these conclusions. Similarly, the bankruptcy court did not abuse its discretion in refusing to grant relief under FRCP 60(b)(1), (3), and (6). The court implicitly found that Perkins had actual notice of the disputed exemption; therefore, there is no justifiable mistake, inadvertence, or other ground that warrants relief under Rule 60(b)(1). The court.found no fraud on the part of Sadkin; therefore, no relief is warranted under Rule 60(b)(3). In addition, as we have already noted, the record does not indicate that these findings are clearly erroneous or an abuse of discretion. Finally, with no further evidence of misconduct or justifiable error in the record, relief under the “catch-all” Rule 60(b)(6) is also not warranted. IV. CONCLUSION For the foregoing reasons, the judgment of the district court affirming the bankruptcy court’s denial of" }, { "docid": "18587337", "title": "", "text": "not extend the 30-day period. Section 522(Z) therefore has made the property exempt. [A trustee] cannot contest the exemption at tMs time whether or not [the debtor] had a colorable statutory basis for claiming it. Id. (quoting Bankr.Rule 4003(b), 11 U.S.C.A.) (emphasis added). After observing that “[deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality,” the Court concluded, “[w]e have no authority to limit the application of § 522(l) to exemptions claimed in good faith.” Id. at-, 112 S.Ct. at 1648-49. In the instant case, Sadkin’s creditors, including a representative of Perkins, met on April 3, 1992. Perkins’ Objection to the claimed exemption was filed on May 21, 1992—well past the thirty-day deadline of Rule 4003(b). Even if the disputed exemption is wholly without merit and devoid of a statutory basis, Taylor still holds that the claim is exempt under Section 522(Z) because of the late objection. Thus, we find no basis for striking the exemption. C. Equitable Relief In its fifth argument, Perkins asserts that the bankruptcy court abused its discretion in. not using the equitable powers granted by Section 105(a) of the Bankruptcy Code or Federal Rule of Civil Procedure 60(b) to sustain Perkins’ late objection. We decline the invitation to grant relief under these provisions. First, “Section 105(a) permits courts to enforce the rules in order to prevent an abuse of process.” As noted, however, the bankruptcy court found no fraud on the part of the debtor and no additional evidence in the record suffices to undermine this finding. Thus, we find no “abuse of process” that calls for invocation of Section 105(a). Second, Section 105(a) authorizes a bankruptcy court “to fashion such orders as are necessary to further the substantive provisions of the Bankruptcy Code.” Chiasson v. Bingler (In re Oxford Management Inc.), 4 F.Sd 1329, 1333 (5th Cir.1993). Nevertheless, “the powers granted by that statute must be exercised in a manner that is consistent with the Bankruptcy Code.” Id. at 1334. The statute “ ‘does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable" }, { "docid": "12855612", "title": "", "text": "denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976). b.Section 362(h) The automatic stay is the central feature of the Bankruptcy Code and works to prevent creditors from taking any further action against a debtor who has filed for bankruptcy except through the bankruptcy court. In 1984, Congress added subsection 362(h) to the Code to provide an explicit sanction for willful violations of this automatic stay. Price v. Rochford, 947 F.2d 829, 831 (7th Cir.1991). The statute provides that “[a]n individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). Congress did not enact a statute of limitations on actions under section 362(h) and the remedy is available even after the bankruptcy proceedings have terminated. Price, 947 F.2d at 831-32; Nelson v. Post Falls Mazda, 159 B.R. 924, 925 (Bankr.D.Idaho 1993). c.Other Bankruptcy Code Remedies In addition to these causes of action, the Bankruptcy Code contains numerous other provisions directed toward regulating the use of the bankruptcy process and the conduct of the parties in bankruptcy court. For example, 11 U.S.C. § 105(a) provides that the court “may issue any order, process, or judgment that is necessary or appropriate ... to prevent an abuse of process.” Other remedies include 11 U.S.C. § 727(a)(4)(B), which authorizes a denial of discharge for presenting fraudulent claims, Rule 1008 of the Federal Rules of Bankruptcy Procedure, which requires filings to “be verified or contain an unsworn declaration” of truthfulness under penalty of perjury, and Rule 9011, which authorizes sanctions for signing certain documents not “well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” See generally Taylor v. Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 1648, 118 L.Ed.2d 280 (1992) (listing remedies). d. Civil Contempt Powers In addition to the statutory remedies already described, most courts which have considered the issue have held that bankruptcy judges also have the power to impose certain contempt" }, { "docid": "13621763", "title": "", "text": "extend the 30-day grace period of § 108(c)(2). See In re Danielson, 981 F.2d 296, 298 (7th Cir.1992) (reading Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) as “holding] that time limits in the Bankruptcy Code must be enforced. Courts have no standby power to excuse violations of statutes and rules.”). Compare and contrast Bank. R. 9006(b)(1), which allows extension of certain rule and order deadlines, but not statutory deadlines. See, e.g., In re Federated Food Courts, Inc., 222 B.R. 396 (Bankr.N.D.Ga.1998). In Aslanidis v. United States Lines, Inc., 7 F.3d 1067 (2d Cir.1993), the Second Circuit confirmed that the statutes of limitations run during the pendency of a bankruptcy. Id. at 1073 (“[Section] 108(c) does not provide for tolling of any externally imposed time bars, such as those found in the two maritime statutes of limitations.”). Furthermore, if a limitations period expires while litigation is stayed, there is but the 30-day extension of 11 U.S.C. § 108(c)(2) in which to file a complaint. Id. (“[section 108(c)(1) ] only calls for applicable time deadlines to be extended for 30 days after notice of the termination of a bankruptcy stay, if any such deadline would have fallen on an earlier date.”). See Rogers v. Corrosion Products, Inc., 42 F.3d 292, 297 (5th Cir.) (“Because a party may not file suit during the duration of the stay, the 30-day period becomes the only functional period in which to commence a suit.”), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995); New Pentax Film, Inc. v. Trans World Airlines, Inc., 936 F.Supp. 142, 146 (S.D.N.Y.1996) (“[section 108(c) ] does not serve to toll the applicable non-bankruptcy law’s statute of limitations ....”) (citing Aslanidis). Aslanidis was revisited by the Second Circuit in Skywark v. United States Lines, Inc., 57 F.3d 1064 (2d Cir.), cert. denied, 516 U.S. 931, 116 S.Ct. 337, 133 L.Ed.2d 236 (1995). In Skywark, three months before U.S. Lines filed for Chapter 11 bankruptcy protection, the plaintiff was injured while working on a U.S. Lines ship. The plaintiff filed a proof" }, { "docid": "4572409", "title": "", "text": "(Appellee’s Br. 5.) As a general rule, the court agrees. Rule 4007(c) states unequivocally that in a chapter 13 bankruptcy “[a] complaint to determine the dischargeability of a debt under [11 U.S.C.] § 523(c) shall be filed no later than 60 days after the first date set for the meeting of creditors under [11 U.S.C.] § 341(a).” Violations of the Federal Rules of Bankruptcy Procedure deadlines cannot be ignored or excused. Taylor v. Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (“Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.”). A primary purpose of Rule 4007(c) is to encourage creditors “to file their complaints speedily or yield them forever.” In re Meyer, 120 F.3d 66, 69 (7th Cir.1997). “Section 523(c) evidences Congressional intent that a debt- or shall be discharged even from fraudulent debt unless the creditor acts.” In re Pendergrass, 376 B.R. 473, 478 (Bankr.E.D.Pa.2007). “The rules promulgated to enforce this provision provide a clear deadline with no language demonstrating that leniency may be allowed for any length of tardiness.” Id. “The result may seem harsh where the filing is but a single day late, but as the Supreme Court has noted on more than one occasion, to hold otherwise is to tread down the quintessential slippery slope ....” Id. In its May Order, the bankruptcy court appeared to make equitable considerations regarding whether Wilkerson filed a timely complaint. The bankruptcy court stated that “[i]n this case, however, deadlines have expired since the filing of the motion in question, and therefore prejudice is an issue.” (May Order 4.) This court interpreted that statement to mean that the bankruptcy court determined that Elliott would suffer prejudice if the motion was deemed an adversary pleading. This court remanded the case to allow the bankruptcy court to articulate the prejudice to the parties in this case. On remand, the bankruptcy court stated that “it was never the intention of this court to base its decision whether to exercise any powers under § 105 by balancing hardships, and this court" }, { "docid": "14905473", "title": "", "text": "sought or obtained. See Fed R. Bankr.P. 4003(b). Therefore, he argues the property was exempt. See 11 U.S.C. § 522(2). If the case had been in Chapter 7 or Chapter 11 since its inception and had involved no conversion, this argument would be unassailable. The Bankruptcy Rules expressly limit a bankruptcy court from extending the time period for objections, except as provided in Rule 4003(b) itself. See Fed. R. Bankr.P. 9006(b)(3) (“The court may enlarge the time for taking action under Rule[ ] ... 4003(b) ... only to the extent and under the conditions stated in [that] rule[].”). By its terms Rule 4003(b) allows an extension of the time period for filing objections only if the extension is granted within the thirty-day period itself. In Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), the Supreme Court interpreted 11 U.S.C. § 522(£) and Rule 4003(b) strictly, holding that a Chapter 7 trustee could not contest the validity of a claimed exemption once the thirty-day period for objections had run and no extension had been obtained within that period, notwithstanding that the debtor had no colorable basis for claiming the exemption. The Supreme Court opined: “Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.” Taylor, 503 U.S. at 644, 112 S.Ct. 1644. Were this a simple Chapter 7 case, therefore, the trustee’s objections would be barred as untimely under the Bankruptcy Rules themselves and binding precedent. However, the appellee and the dissent argue that conversion from Chapter 11 to Chapter 7 produces a different result. See Appellee Br. at 6-9. Because Taylor did not concern a conversion between two chapters of the Bankruptcy Code, they argue that its holding does not compel any particular result in this case. See dis. op. post at 222 & n. 1; see also In re de Kleinman, 172 B.R. 764, 768 (Bankr.S.D.N.Y.1994) (“The Taylor case, however, did not address the effect of a conversion ... and the holding in Taylor does not dictate the outcome of [this case].”); In re Havanec, 175" }, { "docid": "18587338", "title": "", "text": "court abused its discretion in. not using the equitable powers granted by Section 105(a) of the Bankruptcy Code or Federal Rule of Civil Procedure 60(b) to sustain Perkins’ late objection. We decline the invitation to grant relief under these provisions. First, “Section 105(a) permits courts to enforce the rules in order to prevent an abuse of process.” As noted, however, the bankruptcy court found no fraud on the part of the debtor and no additional evidence in the record suffices to undermine this finding. Thus, we find no “abuse of process” that calls for invocation of Section 105(a). Second, Section 105(a) authorizes a bankruptcy court “to fashion such orders as are necessary to further the substantive provisions of the Bankruptcy Code.” Chiasson v. Bingler (In re Oxford Management Inc.), 4 F.Sd 1329, 1333 (5th Cir.1993). Nevertheless, “the powers granted by that statute must be exercised in a manner that is consistent with the Bankruptcy Code.” Id. at 1334. The statute “ ‘does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law, or constitute a roving commission to do equity.’ ” Id. (quoting United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986)). In the instant case, the use of equitable powers to sustain Perkins’ belated Objection would be inconsistent with the operation of Section 522(1), Bankruptcy Rule 4003(b), and the Supreme Court’s interpretation of these provisions in Taylor: Simply put, Perkins missed the explicit thirty-day deadline for filing objections, and Section 105(a) “does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code.” 2 Collier on Bankruptcy ¶ 105.01[3] (Lawrence P. King et al. eds., 15th ed. 1994). The bankruptcy court and the district court saw no reason to excuse Perkins’ delay, and given the Supreme Court’s holding in Taylor, the Bankruptcy Rules were properly enforced as written. Finally, Section 105(a) provides equitable powers for the bankruptcy court to use at its discretion. See In re Danielson, 981 F.2d 296, 298-99 (7th Cir.1992) (“Whatever power § 105(a) creates, it reposes in bankruptcy judges rather than appellate courts" }, { "docid": "14905510", "title": "", "text": "passed. Otherwise, that deadline would be meaningless.”) with 1 Robert E. Ginsberg & Robert D. Martin, Ginsberg and Martin on Bankruptcy § 6.01[F], at 6-18 (4th ed. 1998 Supp.) (\"An objection to the valuation of debtor's property claimed as exempt differs from an objection to an exemption and need not be raised within 30 days of the 341 meeting.”). .During the pendency of this appeal the Chapter 7 trustee sold all of its interest in the 490 shares of stock to Deborah Bell, the appellant's former wife, who was substituted as the appellee on November 2, 1998. . In pertinent part, Rule 4003(b) reads: The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list or supplemental schedules unless, within such period, further time is granted by the court. . Writing for the majority, Justice Thomas in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), did not discuss Rule 9006(b)(3). In expressly and narrowly limiting the power of courts to extend the period for filing objections, the rule provides an \"identifiable reason” precluding the equitable arguments advanced by Justice Stevens in dissent. See id. at 647, 112 S.Ct. 1644 (Stevens, J., dissenting) (\"[Tjhere is no identifiable reason why ordinary tolling principles that apply in other contexts should not also apply in bankruptcy proceedings....”). Cf. Zidell, Inc. v. Forsch (In re Alaska Coastal Lines, Inc.), 920 F.2d 1428 (9th Cir.1990) (no equitable power exists to depart from the mandate of Rule 9006(b)(3)). Further, circuit courts have uniformly construed strictly the power of courts under Rule 4003(b) to extend the deadline within the 30-day period: motions for the extension must be granted, not merely filed, within the period. See Clark v. Brayshaw (In re Brayshaw), 912 F.2d 1255, 1257 (10th Cir.1990) (\"There simply is no room in the wording for construing Rule 4003(b) or Rule 9006(b) to permit granting an extension of time to file" }, { "docid": "18876934", "title": "", "text": "232 (7th Cir.1990); Redfield v. Continental Casualty Corp., 818 F.2d 596, 602 (7th Cir.1987). Danielson contends that Rule 3004 is inconsistent with § 501(c), but we cannot see how. The statute permits debtors and trustees to file proofs of claims on behalf of creditors but does not say when. Rules of procedure fill in such details. Rule 3004 is authorized by the Rules Enabling Act. 28 U.S.C. § 2075. Although Danielson believes that the use of “may” in Rule 3004 implies that the 30 days are not an outer limit, a construction such as “may file within 30 days” sets an enforceable limit. The drafters chose “may” rather than “must” to avoid any implication that a debtor must file a proof of claim on behalf of a creditor. “May file within ...” means that the person need not file, but must act within the time specified if he elects to file. Otherwise Rule 9006, regulating extensions, would be pointless. As a final gasp, Danielson contends that courts may disregard Rule 3004 in the exercise of equitable discretion. He does not reckon with Taylor v. Freeland & Kronz, — U.S. —, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), which holds that time limits in the Bankruptcy Code must be enforced. Courts have no standby power to excuse violations of statutes and rules. Section 105(a) of the Code, 11 U.S.C. § 105(a), does permit courts to enforce the rules and “prevent an abuse of process.” Taylor reserves the question whether this statute implies authority to extend deadlines or ameliorate the consequences of missing them. Id. at —, 112 S.Ct. at 1649. See also In re Unroe, 937 F.2d 346, 349-50 (7th Cir.1991). Whatever power § 105(a) creates, it reposes in bankruptcy judges rather than appellate courts and does not upset the norm of timeliness. Cf. In re Stavriotis, 977 F.2d 1202 (7th Cir.1992). Judge Coar, who presided in this case, saw no reason to excuse Danielson’s delay. Enforcing the Bankruptcy Rules according to their terms cannot be an abuse of discretion. AFFIRMED." }, { "docid": "23509040", "title": "", "text": "the conditions stated” in Rule 4007. Fed. R. Bank P. 9006(b)(3). These rules, however, must be read together with the general powers given to the courts in bankruptcy under 11 U.S.C. § 105, which provides: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a). There is no question that Nardei failed to file his motion for an extension prior to the expiration of Rule 4007(e)’s sixty-day deadline. Nardei, however, argues that Maughan’s failure to comply with a prior order from the court led to the late filing, and Section 105(a) authorizes the court to use its equitable power to toll the filing deadline and prevent an abuse of process. The Supreme Court had an opportunity to address a similar rule in Taylor v. Free-land & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (examining Bankruptcy Rule 4003, which governs the debtor’s list of property claimed as exempt under 11 U.S.C. § 522 on the schedule of assets required to be filed by Rule 1007). Under the rule at issue in Taylor, a trustee or creditor “may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) ... unless, within such period, further time is granted by the court.” Fed. R. BANKR.P. 4003(b). The trustee in Taylor neither timely moved for an extension of time to object nor timely objected to the debtor’s including on the list of exemptions proceeds from a pending lawsuit, believing that the lawsuit had no value. Taylor, 503 U.S. at 641, 112 S.Ct. 1644. After the debtor received a significant payment in settlement of the lawsuit, the trustee" }, { "docid": "251706", "title": "", "text": "bar to challenging the validity of an exemption. Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). The original matrix of creditors filed in this case listed Memorial Hospital as a creditor and, thus, presumably the Bankruptcy Court Clerk’s Notice of the filing of the case was sent to it. This Notice expressly listed a deadline for the filing of any objections to the Debtor’s claimed exemptions of thirty days after the June 16, 2000 creditors’ meeting. The City did not file a timely objection, nor has it provided any excuse for its failure to do so. The courts are split on whether the failure to timely object precludes a lien creditor from asserting an objection to the exemption in defense of a lien avoidance motion. The Tenth Circuit has not ruled on this issue. One line of authority, which precludes the untimely attack on the exemption, is represented by In re Chinosorn, 248 B.R. 324 (N.D.Ill.2000). The Chinosom court relied on Taylors strict enforcement of the thirty day deadline, “even if the debtor did not have a colorable basis for claiming the exemption.” Id. at 326. The Chinosom court believed it was bound by Taylor’s ruling that “[deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.” Id. at 327 (quoting Taylor v. Freeland & Kronz, 503 U.S. at 644, 112 S.Ct. 1644). See In re Shirel, 251 B.R. 157 (Bankr.W.D.Okla.2000); In re Kazi, 985 F.2d 318 (7th Cir.1993). Other courts have held that entitlement to an exemption and entitlement to avoid a lien on claimed exempt property involve separate questions. In In re Thompson, 263 B.R. 134 (Bankr.W.D.Okla.2001), the court held that the secured creditor’s failure to timely object did not preclude it from litigating the merits of the exemption in the context of defending a lien avoidance action. The Thompson court noted several different bases on which other courts have ruled similarly. Id. at 136-37. Some courts have pointed to the language in 11 U.S.C. § 522(f) (“Section 522(f)”) of “would have been entitled” to" }, { "docid": "18876933", "title": "", "text": "creditors that did not submit their own. Danielson submitted a proof of claim on behalf of the IRS on March 22, 1989, long after the expiration of the time provided by Rule 3004. Rule 9006(b)(1) provides for enlargement of time on motion within the time originally prescribed (Danielson did not file such a motion) or on later motion “where the failure to act was the result of excusable neglect.” In re Davis, 936 F.2d 771 (4th Cir.1991), holds, in circumstances identical to Danielson’s, that failure to consult the clerk’s list of claims is not “excusable” neglect. Inattention to the case, unwarranted assumptions about what creditors will do, and the like are common. Treating- them as “excusable” neglect would destroy the timing rules by converting every delay into its own reason for an extension. “Excusable neglect” is a common term in rules of procedure, and we regularly hold that sloth, ignorance, and other negligence does not qualify. E.g., United States v. Dumont, 936 F.2d 292, 295 (7th Cir.1991); Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir.1990); Redfield v. Continental Casualty Corp., 818 F.2d 596, 602 (7th Cir.1987). Danielson contends that Rule 3004 is inconsistent with § 501(c), but we cannot see how. The statute permits debtors and trustees to file proofs of claims on behalf of creditors but does not say when. Rules of procedure fill in such details. Rule 3004 is authorized by the Rules Enabling Act. 28 U.S.C. § 2075. Although Danielson believes that the use of “may” in Rule 3004 implies that the 30 days are not an outer limit, a construction such as “may file within 30 days” sets an enforceable limit. The drafters chose “may” rather than “must” to avoid any implication that a debtor must file a proof of claim on behalf of a creditor. “May file within ...” means that the person need not file, but must act within the time specified if he elects to file. Otherwise Rule 9006, regulating extensions, would be pointless. As a final gasp, Danielson contends that courts may disregard Rule 3004 in the exercise of" }, { "docid": "17699748", "title": "", "text": "— that an absolute right to dismiss under § 1307(b) would render § 1307(c) a nullity — unpersuasive. It is true that if a court grants a debtor’s motion to dismiss under § 1307(b), the court will be deprived of the option, afforded by § 1307(e), of converting the case for cause. But that is no more significant than the fact that an order granting a creditor’s motion to convert under § 1307(c) would foreclose dismissal under § 1307(b). “In the event of competing motions filed under subsections (b) and (c), one subsection will inevitably prevail at the expense of [the other].” Patton, 209 B.R. at 100. Accordingly, the assertion that an absolute right under § 1307(b) would nullify § 1307(c) “carries no weight since either party could make the same argument.” Id. at 104. In addition, the District Court’s reliance on 11 U.S.C. § 105(a) is misplaced. “[T]he equitable powers emanating from § 105(a) ... are not a license for a court to disregard the clear language and meaning of the bankruptcy statutes and rules.” Official Comm. of Equity Sec. Holders v. Mabey, 832 F.2d 299, 302 (4th Cir.1987). In short, although § 105(a) grants a Bankruptcy Court broad powers, it does not authorize the Court to disregard the plain language of § 1307(b). We are mindful that “the purpose of the bankruptcy code is to afford the honest but unfortunate debtor a fresh start, not to shield those who abuse the bankruptcy process in order to avoid paying their debts.” Molitor, 76 F.3d at 220; accord Barbieri, 226 B.R. at 534. Nevertheless, our concerns about abuse of the bankruptcy system do not license us to redraft the statute. See, e.g., Badaracco v. Commissioner, 464 U.S. 386, 389, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) (“Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.”); cf. Taylor v. Freeland & Kronz, 503 U.S. 638, 644-45, 112 S.Ct. 1644 (1992) (holding that the courts “have no authority to limit the application of [the Bankruptcy Code’s 30-day limitations period for challenging claimed exemptions] to" }, { "docid": "12855613", "title": "", "text": "the use of the bankruptcy process and the conduct of the parties in bankruptcy court. For example, 11 U.S.C. § 105(a) provides that the court “may issue any order, process, or judgment that is necessary or appropriate ... to prevent an abuse of process.” Other remedies include 11 U.S.C. § 727(a)(4)(B), which authorizes a denial of discharge for presenting fraudulent claims, Rule 1008 of the Federal Rules of Bankruptcy Procedure, which requires filings to “be verified or contain an unsworn declaration” of truthfulness under penalty of perjury, and Rule 9011, which authorizes sanctions for signing certain documents not “well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” See generally Taylor v. Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 1648, 118 L.Ed.2d 280 (1992) (listing remedies). d. Civil Contempt Powers In addition to the statutory remedies already described, most courts which have considered the issue have held that bankruptcy judges also have the power to impose certain contempt sanctions on the parties appearing before them. E.g., In re Ragar, 3 F.3d 1174, 1178-80 (8th Cir.1993); In re Power Recovery Sys. Inc., 950 F.2d 798, 802 (1st Cir.1991); In re Skinner, 917 F.2d 444, 447-50 (10th Cir.1990); Burd v. Walters, 868 F.2d 665, 669-70 (4th Cir.1989). But see In re Sequoia Auto Brokers, Ltd., 827 F.2d 1281, 1284-90 (9th Cir.1987). Although the Bankruptcy Code includes all the remedies described above, as well as others, these provisions, standing alone, are insufficient to imply congressional intent to preempt all state activity in the area. The mere existence of a detailed and extensive regulatory scheme does not by itself imply an intent to preempt state remedies. English v. General Elec. Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 2279, 110 L.Ed.2d 65 (1990). In addition, courts must consider whether there are “special features” which warrant preemption. Id. In this case, such special features exist not because Congress has clearly evidenced its intent to occupy the entire field of bankruptcy remedies, but rather because allowing the common law" } ]

[ { "docid": "22664578", "title": "", "text": "agency to make the basic asylum eligibility decision .... In such circumstances a ‘judicial judgment cannot be made to do service for an administrative judgment.’ ”) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)); see also Qiu v. Ashcroft, 329 F.3d 140, 157 (2d Cir.2003) (remanding case for further consideration where BIA misapplied applicable legal principles to the evidence); Alvarado-Carillo v. INS, 251 F.3d 44, 46-47 (2d Cir.2001) (same). CONCLUSION For the foregoing reasons, we grant the petition for review and remand the case to the BIA for further proceedings consistent with this opinion. . Zhang has abandoned any challenge to the IJ's denial of his claim for withholding of removal under the United Nations Convention Against Torture and its implementing regulations, see 8 C.F.R. § 208.16(c) (2001), by failing to discuss this claim anywhere in his brief. 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.’’). . As of January 1, 1998, 9000 Yuan RMB was equivalent to roughly $1,087 in U.S. dollars. . This regulation has since been recodified as amended at 8 C.F.R. § 1003.1(e)(4). . Section 1158 was substantially amended by the Real ID Act of 2005, Pub. L. No. 109-13, Div. B., tit. I § 101(a), 119 Stat. 231, 302-03 (May 11, 2005). This and future references to § 1158 refer to the statute as it existed at the time of the IJ’s decision. . Although the statutory definition of a refugee speaks disjunctively of “persecution or a well-founded fear of persecution,” in order to establish asylum eligibility, the applicant must demonstrate a well-founded fear of future persecution. Islami, 412 F.3d at 395 n. 3. The applicant may seek to prove well-founded fear in two ways. One is to demonstrate that he or she has suffered past persecution, in which case a rebuttable presumption arises of a well-founded fear of future persecution. Ramsameachire, 357 F.3d at 178. The applicant may also demonstrate a well-founded fear of future" } ]

[ { "docid": "8019592", "title": "", "text": "likelihood of being overturned on appeal. Accordingly, we cannot say the BIA abused its discretion in upholding the IJ’s denial of a further continuance in the case before us. Petitioner also argues to this Court that the BIA erred in failing to adjudicate the separate, but co-pending 1-130 appeal prior to deciding the continuance appeal that is the subject of the instant petition for review. We decline to reach this issue here, however, as it was not raised before the agency. At no time did Osorio-Pedre-ros request that the BIA consolidate the two cases, nor did he argue to the BIA that it should decide the 1-130 appeal before considering the appeal of the denial of the continuance. Accordingly, the issue is waived. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir.2007), reh’g denied 489 F.3d 126, 127 (2d Cir.2007). For the foregoing reasons, the petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is VaCated, and any pending motion for a stay of removal in this petition is Dismissed as moot. . The IJ also denied voluntary departure, a decision which the petitioner has not appealed. . In front of the BIA, Osorio-Pedreros argued that his ability to point out the errors in the District Director’s decision was hindered by the agency’s failure to provide transcripts of the Stokes interview despite his request for them. We need not consider here, however, whether the agency's failure to provide transcripts of the Stokes interview should excuse Osorio-Pedreros' lack of argument because Osorio-Pedreros has not renewed this line of argument to us. Accordingly, it has been abandoned. Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005). In any event, the BIA was probably correct that the detailed summary of the interview to which Osorio-Pedreros did have access should have enabled the petitioner to at least make some arguments as to why the Director’s conclusion was erroneous. . Osorio-Pedreros has also failed to make any showing to this court that would substantiate his" }, { "docid": "22773903", "title": "", "text": "of persecution. Conclusion The petition for review in No. 10-1263-ag is GRANTED, and the case is REMANDED for further consideration consistent with this opinion. In view of this remand, the consolidated case, No. 11-3584-ag, is DISMISSED without prejudice to reinstatement of the petition in the event that the BIA reissues a final order of removal on remand. . Huang designated Zhou as a derivative beneficiary. See 8 U.S.C. § 1158(b)(3) (2009); 8 CFR § 1208.21 (2012). . Because Huang does not challenge the BIA’s denial of her claims for withholding of removal or relief under the CAT, those claims are forfeited. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). . The IJ did not explicitly make a finding as to whether the fine would constitute a \"deliberate imposition of a substantive economic disadvantage,” which we have ruled is needed before the imposition of a fine can be considered persecution. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002) (internal quotation marks omitted). .The full text of section 1003.1(d)(3) is as follows: (3) Scope of review, (i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous. (ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo. (iii) The Board may review all questions arising in appeals from decisions issued by Service officers de novo. (iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in fact-finding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further fact-finding must file a motion for remand. If further fact-finding is needed in a particular case, the Board may remand the proceeding to the immigration judge or," }, { "docid": "22643747", "title": "", "text": "established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the Regular Argument Calendar." }, { "docid": "817019", "title": "", "text": "the circuits. This panel recalled mandate, withdrew our original opinion, granted \"rehearing on the jurisdictional issue,” and granted a stay of removal. 471 F.3d at 210. We requested that the government address the jurisdictional issue, gave Alsamhouri the opportunity to file a response, and later requested a sur-reply from the government. All such briefs have now been filed. . The immigration regulations authorize immigration judges to \"regulate the course of the hearing” in removal proceedings. 8 C.F.R. § 1240.1(c). In particular, an IJ \"may grant a motion for continuance for good cause shown.” Id. § 1003.29. . See also Abu-Khaliel v. Gonzales, 436 F.3d 627, 632-34 (6th Cir.2006) (reaching the same result, although through different reasoning); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.2004) (finding review permitted on the particular facts presented, because the denial of a continuance was inconsistent with the statutory scheme). . Once the continuance was denied, it was proper for the IJ to deem Alsamhouri’s application to have been abandoned. See 8 C.F.R. § 1003.31(c) (\"If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived.\" (emphasis added)). It is the denial of a continuance, not the subsequent abandonment ruling, that is the subject of Alsam-houri’s petition for review. . There is no merit to Alsamhouri's suggestion that because Tannous’s letter did not explicitly refer to the withholding of removal or CAT claims, it did not sufficiently support the IJ’s finding that Alsamhouri was aware of the deadline as to these claims. There is no indication in the record that Alsamhouri would possibly have understood the letter to distinguish among these interrelated claims, and the IJ was entitled to assume that Alsam-houri, and anyone else reading the letter, would have understood it to refer to all of Alsamhouri’s claims for relief. . A number of Alsamhouri’s arguments may well be barred for failure to meet the exhaustion requirement, as he failed to raise them before the BIA. See 8 U.S.C. § 1252(d)(1); Silva v. Gonzales, 455 F.3d 26," }, { "docid": "13631846", "title": "", "text": "circumstances, was deemed ineligible); Xuan Wang v. Ashcroft, 341 F.3d 1015, 1019 n. 2 (9th Cir.2003) (criticizing BIA for denying wife asylum based on two prior forced abortions when husband was granted asylum on same grounds); cf. Xin-Chang Zhang v. Slattery, 55 F.3d 732, 747 (2d Cir.1995) (noting general principle that, where agency departs from “settled course of behavior” it is “obliged to supply a reasoned analysis for the change”) (internal quotation marks omitted), abrogated on other grounds by statute, 8 U.S.C. § 1101(a)(42); Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir.1994) (observing that although “agencies retain a substantial measure of freedom to refine, reformulate, and even reverse their precedents in [] light of new insights and changed circumstances ... the law demands a certain orderliness,” and thus “[i]f an administrative agency decides to depart significantly from its own precedent, it must confront the issue squarely and explain why the departure is reasonable”) (internal citations omitted). Accordingly, we remand this case to the BIA for further review of petitioner’s future persecution claim in light of the relief afforded to her husband. III. Conclusion For the reasons stated, we DENY the petition for review of the BIA’s September 8, 2003 order insofar as that order denies petitioner’s claims for asylum and relief from removal based on past political persecution, and her CAT claim on any ground. We GRANT the petition for review of the BIA order insofar as it denies petitioner’s claims for asylum and relief from removal based on feared future persecution, and to that extent we hereby REMAND for further review in light of the relief afforded petitioner’s spouse. . Because petitioner does not raise any argument in her brief to this court about CAT relief, we deem any such challenge waived and do not discuss it further. See, e.g., Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). We focus, instead, on her claims for asylum and withholding of removal. . We note that we have previously treated this issue in unpublished summary orders." }, { "docid": "22702490", "title": "", "text": "precise calipers to all [credibility] findings so that any particular finding would be viewed by any three of the 23 judges of this Court as either sustainable or not sustainable.” Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). The appropriate course, as always, is to do what judges do best — to decide one case at a time. We Grant the petition for review as it relates to Lin’s claim for withholding of removal. We dismiss for want of jurisdiction Lin’s challenge to the IJ’s determination that she offered no credible evidence as to her date of entry. As to Lin’s due process claim, the petition for review is Denied. We Vacate the BIA’s order of removal and Remand the case to the agency for reconsideration of Lin’s claim for withholding under the INA. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. . Lin testified that she did not obtain a marriage certificate until 1994 because she was too young to get one at the time of her marriage. . Lin's husband was in the United States at the time of her hearing. .Lin raises a claim of persecution based on \"imputed political opinion\" for the first time in her petition to our Court, arguing that she \"faces a clear probability of persecution based on her politically motivated, illegal departure from China.\" Petr.'s Br. at 39. Because Lin failed to raise any such argument before either the IJ or the BIA, she has failed to exhaust her administrative remedies within the meaning of 8 U.S.C. § 1252(d)(1). Accordingly, we do not consider that claim on appeal. See Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.2003) (per curiam). In her petition for review, Lin also challenges the IJ's denial of her claim for CAT relief. Although Lin presented this claim before the IJ, she failed to do so on her direct appeal to the BIA, instead challenging only the IJ's denial" }, { "docid": "4282411", "title": "", "text": "for a § 212(k) waiver. The IJ ruled in the alternative (if one assumed, for the sake of argument, that he ivas eligible for consideration of a waiver under § 212(k)), that Ahmed did not merit a favorable exercise of discretion under § 212(k) because his business was engaged in (1) “multiple types of criminal behavior” and because (2) he was “serious[ly] derelict!]” in providing support for his children. Finally, the IJ held that Ahmed was statutorily eligible for a § 237(a)(1)(H) waiver, but that he did not merit a favorable exercise of discretion for those same two reasons. On September 29, 2009, the BIA affirmed the IJ’s decision and dismissed Ahmed’s application for a waiver of inadmissibility. On October 14, 2009, Ahmed filed a timely petition for review with our Court. DISCUSSION A. Issues not briefed on appeal are considered abandoned. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). On appeal from the BIA, Ahmed makes no claim regarding the denial of his application for a waiver of inadmissibility under § 212(k). Accordingly, he has abandoned any challenge to that ruling. B. Ahmed claims the BIA abused its discretion because, among other things, its denial of his § 237(a)(1)(H) waiver was “not supported by reasonable, substantial, and probative evidence in the record” and did not reflect a proper balancing of the positive and negative factors bearing on his request. Our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(B)(ii), which provides, in relevant part: “[N]o court shall have jurisdiction to review ... any [ ] decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under [Title II of the INA] to be in the discretion of the Attorney General or the Secretary of Homeland Security.” Ahmed sought relief from removal under § 237(a)(1)(H), a provision contained within Title II of the INA that expressly commits to the discretion of the Attorney General the decision of whether to waive removal. Not surprisingly, the three other Courts of Appeals faced with this question have all found that a waiver" }, { "docid": "4580196", "title": "", "text": "the IJ’s denial of CAT relief are not supported by substantial evidence. Siwe thus urges us to grant his petition for review, insisting that “no reasonable adjudicator could have made the Immigration Judge’s adverse credibility ruling.” As discussed above, because Siwe has an aggravated felony conviction, the REAL ID Act limits our jurisdiction in this case to a review of questions of law and constitutional challenges. Siwe submits that, in denying his request for relief under the CAT, the IJ and BIA erred on an issue of fact, i.e., whether Siwe established that he will more likely than not be tortured if he is removed to Cameroon. As the REAL ID Act prevents us from reviewing such factual determinations, however, we may not reach Siwe’s requested CAT relief. Consequently, we dismiss Siwe’s petition for review as to the CAT. C. Reconsideration by a Three-Member Panel Siwe raises a final point of error — in the alternative, should we not be inclined to remand on other bases — regarding the propriety of the BIA’s procedure. In his motion for reconsideration before the BIA, Siwe requested review by a three-member panel, contending that his case satisfies the requirements set forth in 8 C.F.R. § 1003.1(e)(6). A one-member panel denied the motion; it did not address Siwe’s request. As a result, Siwe argues, the BIA abused its discretion, and he urges us to grant his petition and remand for fur ther proceedings before a three-member panel. We need not reach Siwe’s request for reconsideration by a three-member panel in light of our decision to grant his petition and remand for further proceedings regarding Section 209(b). III. CONCLUSION We hold that Section 209(b) is not ambiguous and that its plain wording does not require an alien to maintain his asylum status to apply for adjustment of status under the statute. We therefore grant Siwe’s petition for review as to this issue and vacate the BIA’s decision ordering Siwe’s removal. As we lack jurisdiction to consider Siwe’s request for relief under the CAT, his petition for review as to that issue is dismissed. DISMISSED IN" }, { "docid": "22626185", "title": "", "text": "not engage in improper “fact-finding” when it again emphasized the significance of Ye’s omission in its 2003 opinion. Along similar lines, the BIA properly declined to make any administrative findings regarding the “corrected” abortion certificate which Ye submitted for the first time on appeal. In his brief, Ye argues that the BIA should have remanded the case to the IJ for consideration of this new evidence. Pet’r’s Br. at 48. However, Ye never made such a request of the BIA; instead, he merely requested that the BIA give the certificate “proper consideration.” Under the regulation most applicable to this situation, “a party asserting that the Board cannot properly resolve an appeal without further factfind-ing must file a motion for remand.” 8 C.F.R. § 1003.1(d)(3)(iv) (emphasis added). Inasmuch as Ye neither made such an assertion nor filed such a motion, the BIA was under no obligation to remand his case. Although the regulation also suggests that the BIA has sua sponte power to remand a case when further factfinding is needed, this authority is entirely discretionary. Id. In these circumstances, we hold that the BIA did not abuse its discretion in finding the evidence insufficiently material to warrant a remand. Finally, Ye challenges the IJ’s denial of CAT relief, having failed to do so before the BIA. While ordinarily, under 8 U.S.C. § 1252(d)(1), an alien may not raise before this Court an issue or category of relief not raised before the BIA, see Gill v. INS, 420 F.3d 82, 86 (2d Cir.2005); Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004), the BIA addressed Ye’s CAT claim despite this oversight. Accordingly, Ye’s failure to raise the CAT claim himself is excused, and we have jurisdiction to address it now. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). The BIA found that Ye failed to present sufficient evidence that he would be tortured in China, for any reason. On appeal, Ye argues that the BIA thus “ignored the obvious record of the proceeding and relied on the IJ’s adverse credibility determination” in order to deny his CAT" }, { "docid": "22921850", "title": "", "text": "pending motion submitted a brief to the Tenth Circuit Court of Appeals on February 6, 2004, after receiving the administrative record. The pending motion was not filed for another four months. R. at 2-3 (internal citations and quotation marks omitted). The Piñedas’ Second Petition in this court seeks review of that denial. II. DISCUSSION A. Summary Dismissal of Appeal The Piñedas’ First Petition challenges the BIA’s adverse ruling on their appeal from the IJ’s removal order. Much of their brief to this court points to alleged errors by the IJ. But procedural bar precludes the Piñedas from raising these claims. Their failure to comply with the BIA’s requirement that they file their promised brief, see 8 C.F.R. § 1003.1(d)(2)(E), led to the BIA’s dismissal of their appeal. On a petition for review to this court we will not permit the petitioner to circumvent proper procedural requirements of the BIA by presenting contentions that were procedurally barred by the Board. The Piñedas, however, have presented two arguments to overcome this procedural bar. First, at oral argument the Piñe-das claimed that the BIA improperly imposed its briefing requirement in their case. They contended that the BIA abused its discretion in not considering the appeal on the basis of the grounds presented in the notice of appeal itself. But because this claim did not appear in their briefs to us, we will not address it. See Thomas v. Denny’s, Inc., 111 F.3d 1506, 1510 n. 5 (10th Cir.1997). Their second argument, which they did brief, is that they were denied due process by the ineffective assistance of prior counsel in failing to file a brief in support of their appeal to the BIA. They argue that this failure is cause to overturn the BIA’s summary dismissal and remand to the BIA for proceedings on the merits. But this claim of ineffective assistance of counsel cannot be heard by this court in the first instance. Before we hear the issue the Piñedas must exhaust their administrative remedies with the BIA. “[B]e-cause the Board has created in Lozada a mechanism for hearing due-process based claims" }, { "docid": "16918094", "title": "", "text": "analysis, help a court later determine whether its decision exceeds the leeway that the law provides.” Id. at 17, 123 S.Ct. 353; see also Yuanliang Liu v. United States Dep’t of Justice, 455 F.3d 106 (2d Cir.2006) (explaining prudential reasons for remand to the BIA, whether or not administrative law principles require it). Accordingly, we ask that the BIA issue a precedential opinion on whether, as a matter of law, a government may acquiesce to a person’s torture where (1) some officials attempt to prevent that torture (2) while other officials are complicit, and (3) the government is admittedly unable to actually prevent the torture from taking place. III. CONCLUSION The law is not clear as to whether the BIA’s implication or assumption that De La Rosa’s evidence precludes a finding of government acquiescence would provide an alternative and sufficient basis on which to uphold the BIA’s May 22, 2008 and June 22, 2009 orders. Therefore, the BIA’s misapplication of the standard of review with respect to the IJ’s factual findings requires that we vacate the BIA’s orders denying De La Rosa deferral of removal and dismissing his appeal, and that we remand De La Rosa’s record back to the BIA. This panel retains jurisdiction over any post-remand appeal that the parties may make. . Rearing and Empowering America for Longevity against acts of International Destruction . The BIA received and considered new evidence submitted by De La Rosa on appeal, finding that it actually undermined his claim. This procedure was inconsistent with 8 C.F.R. § 1003.1(d)(3)(iv), which states that \"[ejxcept for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.” The proper course for the BIA would have been to either reject the evidence without consideration or move, sua sponte, to reopen the case before the IJ with the additional evidence. . Article 3 of CAT uses the language “substantial ground for believing that” rather than “more likely than not that.” The Senate ratified the CAT with the" }, { "docid": "22626184", "title": "", "text": "factual findings to determine whether they are clearly erroneous, and may not engage in fact-finding, other than taking administrative notice of commonly known facts. See 8 C.F.R. § 1003.1(d)(3)®, (iv). Normally, when the BIA determines that further fact-finding is needed, the appropriate course is remand to the IJ. 8 C.F.R. § 1003.1(d)(3)(iv). In the circumstances presented, however, the BIA did not overstep its authority because it based its decision on facts already in the record. The IJ, in his 1995 decision, found adverse credibility in part based on Ye’s failure to include in his written statement that he was beaten and detained for three days. Moreover, the IJ specifically rejected Ye’s assertion that he had “attempted to correct” the discrepancy, noting that Ye never sought to amend or supplement his application. The BIA also addressed this specific omission in 1996, finding the detention and another omission “so crucial to [Ye’s] claim that it [was] not credible that [he] would have overlooked them if they had in fact occurred.” For the foregoing reasons, the BIA did not engage in improper “fact-finding” when it again emphasized the significance of Ye’s omission in its 2003 opinion. Along similar lines, the BIA properly declined to make any administrative findings regarding the “corrected” abortion certificate which Ye submitted for the first time on appeal. In his brief, Ye argues that the BIA should have remanded the case to the IJ for consideration of this new evidence. Pet’r’s Br. at 48. However, Ye never made such a request of the BIA; instead, he merely requested that the BIA give the certificate “proper consideration.” Under the regulation most applicable to this situation, “a party asserting that the Board cannot properly resolve an appeal without further factfind-ing must file a motion for remand.” 8 C.F.R. § 1003.1(d)(3)(iv) (emphasis added). Inasmuch as Ye neither made such an assertion nor filed such a motion, the BIA was under no obligation to remand his case. Although the regulation also suggests that the BIA has sua sponte power to remand a case when further factfinding is needed, this authority is entirely discretionary." }, { "docid": "22643746", "title": "", "text": "v. Ives Laboratories, Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (internal quotation marks omitted). We do not fashion legally binding sub-rules that purport to govern determination of when that generalized standard is met. In the pending case, the IJ supported his finding that Chen’s testimony lacked credibility in part by pointing to two claims that he considered implausible. First, he had difficulty believing that the authorities, lacking Chen’s address, could quickly locate her in a city of one million people just by looking in a neighborhood where young people live. Second, he had difficulty believing that she could escape from detention just because her jailors were not paying attention. We think it entirely reasonable for the IJ to have considered these claims implausible without further explanation and to have relied on them, along with her demeanor and inconsistencies in her testimony, in making the ultimate finding that she was not a credible witness. We need not consider the IJ’s alternative ground that, even if Chen was credible, she had not established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the" }, { "docid": "13631847", "title": "", "text": "of the relief afforded to her husband. III. Conclusion For the reasons stated, we DENY the petition for review of the BIA’s September 8, 2003 order insofar as that order denies petitioner’s claims for asylum and relief from removal based on past political persecution, and her CAT claim on any ground. We GRANT the petition for review of the BIA order insofar as it denies petitioner’s claims for asylum and relief from removal based on feared future persecution, and to that extent we hereby REMAND for further review in light of the relief afforded petitioner’s spouse. . Because petitioner does not raise any argument in her brief to this court about CAT relief, we deem any such challenge waived and do not discuss it further. See, e.g., Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). We focus, instead, on her claims for asylum and withholding of removal. . We note that we have previously treated this issue in unpublished summary orders. See, e.g., Yun Fen Jin v. Gonzales, 165 Fed.Appx. 36, 39 (2d Cir.2006); Shao Mei Li v. BIA, 148 Fed.Appx. 70, 71 (2d Cir.2005). . In light of our remand order, we need not address petitioner’s challenge to the BIA's streamlined review of her case. See 8 C.F.R. § 1003.1 (e)(3)-(6). Recently, however, this court ruled that we generally lack jurisdiction to review decisions to streamline. See Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir.2006)." }, { "docid": "22360573", "title": "", "text": "made by the Agency was not in declining to exercise its discretionary sua sponte authority—a decision we cannot review—but, rather, in assuming that Mahmood was inevitably barred from pursuing adjustment of status by his failure to depart voluntarily on time. This error could well have led the agency to believe that any consideration of its possible exercise of sua sponte discretion was futile. The error was more than understandable because Dada had not yet issued at the time of the BIA’s or IJ’s decision. But it was error nonetheless. We therefore vacate the BIA’s order, and remand Mahmood’s case to the BIA to give the BIA— or the IJ, if that is the most appropriate decision-maker in the first instance—the opportunity to consider, in view of the current relevant law, whether it would still decline to exercise its sua sponte authority to reopen Mahmood’s removal proceedings. We note that Mahmood did more than simply file a motion to reopen, and so the Agency may choose to treat Mahmood’s filings as abating voluntary departure under Dada even if, in other cases, it were to choose not to apply retroactively its new rule that any reconsideration or reopening motion automatically terminates voluntary departure. We also, of course, recognize that the Agency can, on remand, choose not to exercise its sua sponte authority, regardless of whether Mahmood’s filing of a motion to reopen and accompanying affidavit constituted withdrawal from voluntary departure. And we repeat that such a decision would be unreviewable by us. Alt, 448 F.3d at 518. For these reasons, we GRANT the petition for review, VACATE the BIA’s order, and REMAND the case to the BIA for further proceedings consistent with this opinion. . Following the initial filing of this opinion on April 1, 2009, the Government requested that we amend our opinion. The Government asserted that the BIA lacked authority to reopen sua sponte Mahmood’s removal proceedings in this instance because the BIA had not previously \"rendered a decision” in Mahmood's case. (Gov't mot. 4 (quoting 8 C.F.R. § 1003.2(a))). The Government further averred that it was up to the" }, { "docid": "5090214", "title": "", "text": "continue to govern cases falling within its parameters. Section 212(c) Relief for Aliens with Certain Criminal Convictions Before April 1, 1997, 69 Fed.Reg. 57,826, 57,832 (Sept. 28, 2004). As this commentary demonstrates, § 1212.3(h)(3) does not displace § 1212.3(g), much less § 309(c)(1) of IIRIRA. Therefore, we agree with the holding of the Second Circuit in Garcia-Padron, and find that the fact that Enriquez’s 2001 cocaine conviction occurred after the passage of AEDPA and IIRIRA does not mean it could not have been waived in his deportation proceedings. B. Enriquez also argues that the BIA impermissibly considered the transcripts of his 2004 deportation hearing and the oral decision of the IJ that resulted from that proceeding, which he alleges were not properly made part of the record in his later removal proceedings. He argues that when the BIA assessed the scope of his § 212(c) waiver, it should have only considered documents made part of the record before the IJ. These documents included his application for § 212(c) relief, which disclosed his 1999 cocaine offense, and the written order of the IJ, which showed that his application was “granted,” without further explanation. We find Enriquez’s arguments unpersuasive and conclude that the BIA did not err in consulting the transcripts, as it had authority to take administrative notice of them. We review an agency’s decision to take administrative notice for abuse of discretion. See Rivera-Cruz v. INS, 948 F.2d 962, 966 (5th Cir.1991). The BIA is prohibited from engaging “in factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see also Procedural Reforms To Improve Case Management, 67 Fed.Reg. 54,878, 54,892 (Aug. 26, 2002) (characterizing § 1003.1(d)(3)(iv) as codifying “Board precedent holding that new facts will not be considered on appeal”). Accordingly, the record in removal proceedings before the BIA is limited to the “hearing before the immigration judge, including the testimony, exhibits, applications, proffers, and requests, the immigration judge’s decision, and all written orders, motions, appeals, briefs, and other papers filed in the proceedings.” 8 C.F.R. § 1240.9. In this case, although the jumbled state of the record" }, { "docid": "22804973", "title": "", "text": "or sterilization that this Court has rejected as qualifying for per se eligibility for asylum. Wang also asserts that he has a well-founded fear of persecution because he has a child in China and because his wife recently gave birth in the United States to the couple’s first child. Wang has, however, presented no evidence to show the likelihood that a person in his situation would be subject to persecution if he returned to China with children born in the United States. His claim is therefore speculative and fails to meet the standard for a well-founded fear of persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (concluding that, “[i]n the absence of solid support in the record” for petitioner’s assertion that he will be subjected to persecution on account of his two United States born children, “his fear is speculative at best”). Because Wang does not raise his claim of withholding of removal in his petition to this Court, he has waived any challenge to the agency’s denial of that claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir.2005); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). Because a petition for review by his wife is not before the Court, we cannot consider Wang’s request that his case be consolidated with his wife’s case. For the foregoing reasons, we conclude that the BIA did not abuse its discretion in denying Wang’s motion to reopen. The petition for review is therefore denied. Having completed our review, Wang’s pending motion for a stay of removal in this petition is denied as moot, and his request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1)." }, { "docid": "20587089", "title": "", "text": "checks or other remanded proceedings were ongoing. Here, for instance, Abdisalan’s petition for review of the 2010 BIA decision was filed before the conclusion of her agency proceedings in 2011, and was thus premature at the time it was filed. Abdi-salan also filed a timely petition for review of the 2011 IJ order, but there are surely other petitioners who were not so prescient. In particular, there may be petitioners who filed petitions for review that we now know to be premature, but who assumed — in reasonable reliance on Li— that they did not need to file a second petition after their remanded proceedings were completed. It would be unjust to punish these petitioners for our own doctrinal inconsistency. Therefore, we hold that any pending petitions rendered premature by today’s decision shall be treated as automatically ripening into timely petitions upon the completion of remanded proceedings, regardless of whether those proceedings have already concluded. Under this rule, Abdisalan’s premature 2010 petition ripened upon the conclusion of her administrative proceedings in 2011, which means we have jurisdiction over both of her petitions. We take no position on the current circuit split regarding treatment of premature petitions generally. Our holding extends only to petitioners whose petitions for review were filed in this court before today’s date. Finally, we note that if the BIA wishes to avoid formally remanding cases to the IJ, it may avail itself of its regulatory authority to stay proceedings and refrain from issuing a decision until background checks have been completed or updated. See 8 C.F.R. § 1003.1(d)(6)(ii)(B); id. § 1003.1(d)(6)(iii). Adopting such an approach might prevent further confusion in the courts of appeals that have yet to decide this issue. IV. We therefore have jurisdiction over Abdisalan’s consolidated petition for review, which challenges the agency’s finding that her asylum claim was time-barred. The Government concedes that because the IJ granted Abdisalan withholding of removal on the basis of past persecution, Abdisalan has necessarily met the lesser standard for a grant of asylum. Regardless of the merits of her asylum claim, however, she must demonstrate “by clear" }, { "docid": "22422949", "title": "", "text": "for CAT relief. There is, therefore, no basis for reopening. AR at 2. Thus, on the motion for reconsideration, the BIA reviewed the entire record submitted by Alam, recognized its prior error in mechanically applying the numerical limits on motions to reopen, addressed on the merits his claim that the changed-country-conditions exception applied, and rejected it on the merits. The BIA’s finding makes clear that it has assessed the evidence behind Alam’s CAT claim and found that to be an insufficient ground for asylum as well. Because the BIA has articulated legally proper and sufficient reasoning for denying Alam’s motion to reopen, albeit in the context of deciding his motion to reconsider, remand would be pointless “because it is clear that the agency would adhere to its prior decision in the absence of error.” Xiao Ji Chen, 434 F.3d 144, 2006 WL 27427, at *10 (citations omitted). CONCLUSION For the foregoing reason, the petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is Vacated, and any pending motion for stay of removal in this petition is Denied as moot. Any pending request for oral argument in this petition is Denied in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(d)(1)." }, { "docid": "23162008", "title": "", "text": "opting instead to file a motion for reconsideration limited to the timeliness of his asylum claim and failing to raise any withholding or CAT issues. In the absence of an appeal to the BIA, the IJ’s removal order of November 15, 2004, became “final” on December 14, 2004, thirty days after the IJ’s decision. See 8 C.F.R. §§ 1003.38-39, 1240.14-.15; see also 8 U.S.C. § 1101(a)(47)(B). Minasyan then had thirty days to petition this court for review, see 8 U.S.C. § 1252(b)(1), but his petition was not received until June 22, 2006. Thus, setting aside the Government’s separate argument that Minasyan failed to exhaust his claims for withholding of removal and CAT relief before the BIA, his petition for review of the withholding and CAT claims for relief was untimely. We therefore lack jurisdiction over those claims. Minasyan also urges this court to remand his claims to the BIA with instructions to reopen proceedings sua sponte, but this request is precluded by our decision in Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002), which held that this court “do[es] not have jurisdiction to review[an alien’s] claim that the BIA should have exercised its sua sponte power” to reopen or reconsider a prior order. See id. at 1159. We therefore GRANT the petition for review with respect to the asylum issue only and REMAND to the agency for further proceedings as to that issue. . Minasyan’s asylum application was deemed \"filed” on April 9, 2002, by virtue of the agency’s \"mailbox rule,” which provides that \"[i]n a case in which the application has not been received by the Service within 1 year from the applicant’s date of entry into the United States, but the applicant provides clear and convincing documentary evidence of mailing the application within the 1-year period, the mailing date shall be considered the filing date.” 8 C.F.R. § 208.4(a)(2)(ii). In this case, Minasyan provided the immigration judge (\"IJ”) with an express mail receipt indicating that he mailed his application on April 9, 2002. Both the IJ and the BIA found on that basis that Minasyan filed his application" } ]

[ { "docid": "3682632", "title": "", "text": "Cir. 1954), cert. denied 348 U.S. 822, 75 S.Ct. 36, 99 L.Ed. 648. We find support for our conclusion on this § 8(a) (1) issue in the following cases: N. L. R. B. v. Wilson Concrete Co., 304 F.2d 1 (8 Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285 (8 Cir. 1961); Kingsbury Elec. Co-op. v. N. L. R. B., 319 F.2d 387, 391 (8 Cir. 1963); Bituminous Material & Supply Co. v. N. L. R. B., supra, p. 369 of 281 F.2d; N. L. R. B. v. Solo Cup Co., supra, p. 523 of 237 F.2d; Marshfield Steel Co. v. N. L. R. B., 324 F.2d 333 (8 Cir. 1963). 2. The § 8(a) (3) issue. These discharge issues are difficult and sensitive when termination coincides with union activity. The employee and the Board present plausible cause for continued employment — a good record, superior comparative production, recent change in assignment, lack of individual warning, and the like — and would tie his discharge solely to union sympathy or activity known to the employer. Management in turn presents equally plausible cause for the discharge — under-production, production not in line with ability, trouble-making, attitude, undesirable effect on fellow employees, similar contemporaneous discharges of non-union employees, and the like, — and would tie the discharge to time-honored and accepted management prerogatives wholly unrelated to union activity or sympathy and here accentuated by the heavily competitive demands of the textile industry. The trier of fact must chose between these two. Again its decision, although always outrageous to the losing party and hard for it to accept, is, if supported by an adequate evidentiary basis, not to be retried by this court. Once more we encounter conflict in the evidence and argument as to the credibility of witnesses. But on the discharge issue, too, these are matters for the trier of fact and not for this court, and here again we find sufficient support in the record for the findings made by the Board. Comparable cases are N. L. R. B. v. Wilson Concrete Co., supra;" } ]

[ { "docid": "17611183", "title": "", "text": "to receive an increase was uniformly attributed by his supervisors to the above noted deficiencies in his work performance. He further admitted that only twenty minutes before he was discharged he had been the object of yet another reprimand for spending too much time away from his work, and that he had responded with an insolent retort which we consider too vulgar to repeat. This evidence, adduced from York himself, fully discloses that his job performance was frequently unsatisfactory and objectionable to his supervisors. Certainly, there is no evidence in the record to even suggest that any employee retained by the company had a poorer employment history and work record. York acknowledged that he was the thirty-first and last employee hired by the company and that he had ho seniority over any other person. Undoubtedly York was an active participant in the union organizational campaign. He had offered his home for several of the early meetings; he served as the union observer at the Board election; and he was a member of the union’s contract negotiation committee (though he was later voted off of this committee by the union members). The company officials were well aware of York’s union participation. Indeed, neither York nor the Board has suggested that the frequent reprimands were undeserved or unjustified or that they were precipitated by an anti-union animus on the part of the company. But the effect of the Board’s decision is that York’s discharge itself was so motivated despite his past conduct and that his employment was terminated for reasons independent of his poor job performance. In a similar case, Martel Mills Corp. v. N. L. R. B., 4 Cir., 1940, 114 F.2d 624, 631, involving determination of an employer’s motivation for the discharge of a union member, this court said: “We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer’s action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief" }, { "docid": "23207248", "title": "", "text": "not on the employer to disprove the presence of anti-union animus or other prohibited discriminatory motivations in hiring and firing”. We cannot say that the Board has met the burden of proof that Edwards’ discharge was “discriminatorily motivated” or that the Board’s finding of unlawful motivation is supported by substantial evidence. On this phase of the case we are in agreement with Member Jenkins, dissenting member of the Board. 118 N. L. R. B. 1380, 1388. If a man has given his employer just cause for his discharge, the Board cannot save him from the consequences by showing that he was pro-union and his employer anti-union. We have no doubt that the Birmingham Publishing Company was glad to get rid of Edwards. But the Company has a right to operate its plant efficiently. If an employee is both inefficient and engaged in union activities, that is a coincidence that does not destroy the just cause for his discharge. We cannot say, and the evidence does not support the conclusion that the Board can say: Edwards was fired because the Company’s officials had an anti-union animus against Edwards. The evidence shows beyond a doubt that Edwards left his presses during working hours. Daum had been hired as Supervisor of the letterpress department a short time before this case came to a head. He was given a free hand in running his department. He had been a member of the Union for forty-one years. Daum testified that he discharged Edwards because Edwards persisted in leaving his presses and because he had spoiled a printing job. Edwards has never denied that he left his presses. He did deny receiving warnings. Daum contradicted this, and is supported by the testimony of Key and Jurtsen. In part, the Board based its holding that the Company discriminated against Edwards on the fact that Johnson, leader of the anti-union faction, was allowed freedom to roam the plant night and day; as against the Company discharging Edwards for leaving his presses. But Johnson was not under Daum’s supervision; what Johnson or other employees did had no relation to" }, { "docid": "21178679", "title": "", "text": "the amended Act, 29 U.S.C.A. § 158(a) (1) and (3), by discriminatory discharges of the nine employees and by interrogation of one of them. The Board panel adopted the examiner’s findings and con- ' elusions and, in addition, allowed interest on the back pay awards. One member, however, dissented as to the interest and also dissented, because of picket line misconduct, from the reinstatement and back pay for employees James Maxwell and Rollo Kollodge. Trumbull’s position here is (a) that the findings of discriminatory discharge and of improper interrogation are not supported by substantial evidence and (b) that the Board erred in issuing a remedial order in favor of Maxwell and Kollodge. In N. L. R. B. v. Byrds Mfg. Corp., 324 F.2d 329, 332-333 (8 Cir. 1963), we had recent occasion to say: “These discharge issues are difficult and sensitive when termination coincides with union activity. The employee and the Board present plausible cause for continued employment * * * and would tie his discharge solely to union sympathy or activity known to the employer. Management in turn presents equally plausible cause for the discharge * * * and would tie the discharge to time-honored and accepted management prerogatives wholly unrelated to union activity or sympathy * * *. The trier of fact must choose between these two. * * * [I] ts decision, although always outrageous to the losing party and hard for it to accept, is, if supported by an adequate evidentiary basis, not to be retried by this court.” Judge Sanborn expressed it more concisely in N. L. R. B. v. Wilson Concrete Co., 304 F.2d 1, 2 (8 Cir. 1962), when he said, “The Board is the trier of the facts. This Court cannot retry them. Errors of fact committed by the Board, if any, are not subject to correction here”. A. We have carefully reviewed the entire record. It suffices to say: 1. That on the issue of discharge of the six employees on July 27 for concerted activities protected under § 7, the record contains evidence that three of the six met with" }, { "docid": "2135207", "title": "", "text": "several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer’s discriminatory conduct was ‘inherently destructive’ of important employee rights, no proof of an- antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations.” Though a reduction in work force was clearly in order, the manner in which the Company made the reduction gave rise to a finding by the Board that the stated reasons given were pretextual. Even though the employer may reduce its number of employees, it may not discriminate because of union activity in the selection of those to be terminated. The General Counsel relied initially on a percentage test to show that the selection procedures had been used to discriminate against the union employees. Of the 18 discharged employees, all but one had signed authorization cards. This presented a telling percentage of 95 per cent discharge of union adherents while the percentage of union employees in the plant as a whole was 70 per cent. This on its face would indicate a discriminatory discharge vio-lative of the Act. Hamilton-Brown Shoe Co. v. NLRB, 104 F.2d 49, 53 (8th Cir. 1939); see, Annot. 153 A.L.R. 841 (1944). The Company challenges these statistics by countering that other discharges of non-union adherents during the same period of time as the discharges in question would alter the figures. This may be correct, but there still exists substantial evidence in the record from which the Board could infer that the discharges questioned were discriminatory, and the Board can properly consider in context the discharges made during a crucial period of the organizing campaign. As stated by Judge Lay in NLRB v. The Freeman Company, 471 F.2d 708 (8th Cir. 1972) : “The rule is generally recognized that where the company demonstrates a proper business reason which standing alone would justify the company’s action affecting employees, the Board has the burden to overcome this fact and demonstrate that the reasons exercised by the company were pretex-tual. Reliance" }, { "docid": "17611184", "title": "", "text": "negotiation committee (though he was later voted off of this committee by the union members). The company officials were well aware of York’s union participation. Indeed, neither York nor the Board has suggested that the frequent reprimands were undeserved or unjustified or that they were precipitated by an anti-union animus on the part of the company. But the effect of the Board’s decision is that York’s discharge itself was so motivated despite his past conduct and that his employment was terminated for reasons independent of his poor job performance. In a similar case, Martel Mills Corp. v. N. L. R. B., 4 Cir., 1940, 114 F.2d 624, 631, involving determination of an employer’s motivation for the discharge of a union member, this court said: “We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer’s action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief guide is the words of the witness under oath who undertook to disclose the workings of his mind. If his explanation is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation. * * *. ****** “ * * * An examination of * * * the record makes it obvious that two separate explanations are advanced for Whittle’s dismissal: the Martel Mills alleges that at the time of the general lay-off, it discharged an inefficient worker; the Board concludes that the Martel Mills seized the opportunity to discharge the employee because of his union activities. Aware of the burden of proof that is imposed upon the Board in proving the employer’s dominant motivation in discharging the employee * * * we are of the opinion that the evidence advanced to support this finding of discrimination is not substantial. “ * * * Had the Martel Mills desired to discharge Whittle for his union affiliations, it could very easily have selected one" }, { "docid": "23005747", "title": "", "text": "B. v. The Newton Co., 5 Cir., 236 F.2d 438, held that the discharge of a high percentage of union adherents was not discriminatory in that the selection followed a non-discriminatory company rating system. N. L. R. B. v. Moore Dry Kiln Co.. 5 Cir. 1963, 320 F.2d 30, 33, held that the inference based on statistics was inadequate, because there was a lack of evidence that the company knew the men were union adherents and because most of the men were discharged on a basis of strict seniority. It would serve no useful purpose to add pages to this opinion by discussing the case of each employee who was discharged. This Court has read and reread the entire record. We find that only McMen and Cox were discharged for cause. Except as to the reinstatement of McMen and Cox, we grant enforcement of the Board’s order. . The Board found it “unnecessary to consider other conduct also alleged as violations of Section 8(a) (1) of the Act as any findings thereon would not affect the scope of the Order.” We have considered such other conduct to the extent it throws light on the employer’s motivation in the interrogation and discharge of the employees. . Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act. 78 Harv.L.Rev. 38, 106 (1964). . Bok, n. 2 at 107. . Bok, n. 2 at 107. . “[T]he Board is required to determine tbe significance of particular acts of interrogation in the light of the entire record in the ease.” Blue Plash Express, Inc., 1954, 109 NLRB 591. . This Court has recognized the coercive effect of interrogation in a variety of cases. The test is whether the questioning tends to be coercive, not whether the employees are in fact coerced. N. L. R. B. v. American Mfg. Co., 5 Cir. 1943, 132 F.2d 760. A few isolated instances of questioning may not be coercive if there is no background of company hostility to the union. N. L. R. B. v. Fuchs Baking Co., 5 Cir. 1953, 207 F.2d" }, { "docid": "21178678", "title": "", "text": "BLACKMUN, Circuit Judge. The National Labor Relations Board seeks enforcement here, pursuant to § 10 (e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(e), of its 3-member-panel order issued November 23, 1962, to Trumbull Asphalt Company of Delaware. The Board’s decision and order are reported at 139 N.L.R.B. No. 97. The union concerned is a Teamsters local. Trumbull, a national concern (see Trumbull Asphalt Co. of Del. v. N. L. R. B., 314 F.2d 382 (7 Cir. 1963), cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032), operates a plant in Minneapolis where it has a small number of employees and where it is engaged in the processing and blending of asphalt products. Six employees (Johnson and five others) are claimed to have been discharged there on July 27, 1961, two (Maxwell and Kollodge) on September 1, and a ninth (Guck) on September 8. The plant was under organization pressure and was struck on September 15. The trial examiner concluded that Trumbull violated § 8(a) (1) and (3) of the amended Act, 29 U.S.C.A. § 158(a) (1) and (3), by discriminatory discharges of the nine employees and by interrogation of one of them. The Board panel adopted the examiner’s findings and con- ' elusions and, in addition, allowed interest on the back pay awards. One member, however, dissented as to the interest and also dissented, because of picket line misconduct, from the reinstatement and back pay for employees James Maxwell and Rollo Kollodge. Trumbull’s position here is (a) that the findings of discriminatory discharge and of improper interrogation are not supported by substantial evidence and (b) that the Board erred in issuing a remedial order in favor of Maxwell and Kollodge. In N. L. R. B. v. Byrds Mfg. Corp., 324 F.2d 329, 332-333 (8 Cir. 1963), we had recent occasion to say: “These discharge issues are difficult and sensitive when termination coincides with union activity. The employee and the Board present plausible cause for continued employment * * * and would tie his discharge solely to union sympathy or activity known to the" }, { "docid": "15733161", "title": "", "text": "(544 F.2d at page 819). The D.C. Circuit Court of Appeals followed the Mueller Brass Co. and Fuller Super Markets eases in Clothing Workers, Midwest Regional Joint Board v. N. L. R. B., 564 F.2d 434, D.C. Cir. 1977, where it held: “Absent a showing of anti-union motivation, an employer may discharge an employee for a good reason, bad reason, or no reason at all, without running afoul of the labor laws. N. L. R. B. v. O. A. Fuller Super Markets, Inc., 374 F.2d 197, 200 (5th Cir. 1976). In addition, the mere fact that a specific employee not only breaks the company rule but also evinces a pro-union sentiment alone is not sufficient to vitiate just cause for his discharge. Mueller Brass Company v. N. L. R. B., 544 F.2d at 819. When good cause for discharge or suspension is clearly established, the burden is on the Board to show that anti-union animus was the motivating factor. (Citations omitted). The burden on the Board is not simply to discover some evidence of improper motive, but to find an affirmative and persuasive reason why the employer rejected a good cause and chose an illegal one. (Citation omitted). The mere existence of anti-union animus is not enough.” When an employee is discharged for good cause, the fact that the employer may “harbor an antipathy toward the employee grounded in anti-unionism does not make the discharge unlawful.” Frosty Morn Meats, 296 F.2d at 620. In Klate Holt Co., 161 N.L.R.B. 1606 (1976) the Board said: “. . . If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful.” It is well settled that substantial evidence on the record as a whole must exist to support an inference of unlawful employer motivation in the discharge of an employee. Mere suspicions of unlawful motivation are not sufficient to constitute substantial" }, { "docid": "14376791", "title": "", "text": "be served by requiring an employer to keep in its plant anyone with the propensities for the kind of “animal exuberance” displayed by Hanger. The Board’s employment of the exculpating phrase is supported by a footnote reference to an earlier NLRB decision which in turn discloses its genesis in an opinion by Mr. Justice Frankfurter. In Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, 312 U.S. 287, 293, 61 S.Ct. 552, 555, 85 L.Ed. 836, 841 (1940), in distinguishing between violent and peaceful picketing and as an abstract observation, Justice Frankfurter said, “And so the right of free speech cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that otherwise peaceful picketing has the taint of violence.” (Emphasis supplied.) We are quite satisfied that Justice Frankfurter, when he coined the colorful phrase, did not have in mind the fearsome threats and gestures of employee Hanger. There was other evidence in the record that Hanger had a history of displaying temper and promising physical harm to anyone who should “hurt” him or his family. The trial examiner made no special findings in this regard, but it is clear that Hanger’s September 12 conduct was not out of character, and was not merely a momentary and unwonted exhibition of “animal exuberance.” In N. L. R. B. v. National Furniture Mfg. Co., 315 F.2d 280 (CA 7, 1963), the Seventh Circuit denied enforcement of a Board order which had overturned its trial examiner’s conclusion that reinstatement and back pay should be denied an illegally discharged employee. Judge Swygert’s footnote expression of the reason why an employer should not have to put up with conduct not unlike Hanger’s is apt here. “ * * * his calling in to question respondent’s personnel manager’s veracity and maternal ancestry on the first day of the Hearing in the instant proceedings, render it difficult for us to judicially enforce a renewal of a relationship that bids ill for all concerned.” (Emphasis supplied.) See also N. L. R. B. v. Trumbull Asphalt Co. of Del., 327 F.2d 841, 846" }, { "docid": "1485040", "title": "", "text": "he was discharged— the reason being that the home center and cigarette department had been discontinued. The trial examiner found— and the Board agreed — that the discontinuance of the home center department was justified for business reasons. However, our inquiry does not end here. It is undisputed that the company was aware of Garcia’s key role in the Union movement, including his acting as a Union observer during the 1966 representation election and serving as an employee member of the Union negotiating team. While this court is fully cognizant that being an ardent supporter and protagonist of the Union does not insulate an employee against discharge for justifiable cause, N. L. R. B. v. WinnDixie Stores, Inc., 410 F.2d 1119 (5th Cir. 1969), we are likewise aware that the existence of valid grounds for discharge is no defense to an 8(a) (3) unfair labor practice charge when discriminatory motive is a factor in the employer’s decision. Singer Co. v. N. L. R. B., 429 F.2d 172 (8th Cir. 1970); N. L. R. B. v. Hanes Hosiery Division, Hanes Corp., 413 F.2d 457 (4th Cir. 1969); Winchester Spinning Corp. v. N. L. R. B., 402 F.2d 299 (4th Cir. 1968). Moreover, it need not be shown that the proscribed motive was “dominant” — for general counsel carries his burden when it is shown that the employee would not have been discharged but for the anti-union animus of the employer, N. L. R. B. v. Whitfield Pickle Co., 374 F.2d 576 (5th Cir. 1967), or that in the absence of his union activities, the employee would have been treated differently. Frosty Morn Meats, Inc. v. N. L. R. B., 296 F.2d 617 (5th Cir. 1961). We have meticulously and with great effort digested the more than 1,000 pages contained in the record in this case. Viewing that record as a whole and considering the totality of the circumstances, we conclude that the Board’s finding of discriminatory discharge in violation of § 8(a) (3) of the Act is “Based upon such relevant evidence as a reasonable mind might accept as adequate to" }, { "docid": "11931553", "title": "", "text": "there is an absence of substantial evidence on the record considered as a whole. To determine whether the employer has committed an unlawful discrimination, the courts regularly have looked to the motivation, and when conflicting evidence has been offered as to-whether the motive was one of just cause or anti-union animus the inquiry has been pursued to find the dominant motive or the moving force. If an employer motivated by anti-union design discharges an employee, he has violated the statute even though the employee has performed misdeeds tohich would wairant his dismissal. E. g., N. L. R. B. v. C. & J. Camp, Inc., 5 Cir., 1954, 216 F.2d 113. But if an employee is discharged for cause, the fact that the employer harbors an antipathy toward the employee grounded in anti-unionism does not make the discharge unlawful. E. g., N. L. R. B. v. Birmingham Publishing Company, 5 Cir., 1959, 262 F.2d 2.” (Emphasis added.) The Court noted that there was “unchallenged testimony of several witnesses, including fellow employees who signed-union cards” that Judkins, the discharged employee, was a “slow, uncooperative, and dangerous worker.” We held that “when the evidence of just cause for-discharge is as great as it is here, the record as a whole does not support the-conclusion that the discharged employee was deprived of any right because of union activities.” In the course of the opinion we observed that if the “misdeeds of the employee are so flagrant, that he would almost certainly bo fired anyway there is no room for discrimination to play a part.” This was stated with reference to the effect of a discharge on pro-union fellow employees of a discharged employee. We pointed out that a discharge resulting from discriminatory motives “makes others apprehensive” but discharges for a cause, even if there is-also union animus present, does not “discourage [fellow employees] from membership in a Union, since all will understand that the employee would have been fired anyway.” This the Board construes-in its brief as an application of the Tex-O-Kan rule and a holding that “even. though there was evidence in the" }, { "docid": "11821160", "title": "", "text": "the General Counsel has the burden of proving a violation of § 8(a)(3). This must be established by acceptable substantial evidence on the whole record that the discharge comes from the forbidden motive of interference in the employee’s statutory rights. Thus, if the employer comes forward with evidence of a motive for the firing devoid of Union animus, it is incumbent on the General Counsel to demonstrate explicitly that an improper motive contributed to the discharge. To accomplish this burden it is necessary to have proof , of an employer’s knowledge of his employee’s Union activity. John Howard points out that the Company failed to receive the Union’s letter requesting Town & Country Supermarkets to bargain until after the firing of Karlinger and Mogle on May 7th. However, the record as a whole contains sufficient circumstantial evidence that Howard knew of the Union activity of these employees on the 5th and 6th of May and along with any business-related complaints he had, their Union activities brought about their termination. It is unnecessary here for the Board to prove beyond a reasonable doubt that Howard was completely aware of the discharged employees’ involvement, where, as here, the record in its entirety allows a fair inference of discriminatory motivation. Circumstantial evidence of the employer’s knowledge and motive is sufficient to prove a § 8(a)(3) violation. NLRB v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 367, 85 L.Ed. 368 (1941). The testimony of Howard and that of Roger Box concerning the shortcomings of Karlinger and Mogle would be sufficient to support the Board had it failed to find a § 8(a)(3) infraction. However, we cannot substitute our judgment for that of the Board if there is a reasonable basis in the record as a whole for its determination. The inference of unlawful discrimination in the firing of employees involved in Union activity is sustainable on the record before the court. We conclude the employer’s rationale for its action has included a pretext to mask anti-union motivation. Beyond the Union activity of Karlinger and Mogle, we are unable to ignore the fact" }, { "docid": "23122166", "title": "", "text": "N. L. R. B. v. Shedd-Brown Mfg. Co., 7 Cir., 213 F. 2d 163; Harrison Sheet Steel Co. v. N. L. R. B., 7 Cir., 194 F.2d 407, 410; N. L. R. B. v. Kropp Forge Co., 7 Cir., 178 F. 2d 822, 823-827, certiorari denied 340 U.S. 810, 71 S.Ct. 36, 95 L.Ed. 595. The Company’s further insistence that this finding is refuted by its express declaration of neutrality is unconvincing, for its action, through Werner and other supervisory personnel, wholly belies the statement, which we must consider in the light of facts which the record as a whole supports, N. L. R. B. v. Laister-Kauffmann Aircraft Corp., 8 Cir., 144 F.2d 9. Mere “lip service to the policy and purposes of the Act is not sufficient.” Id., 144 F.2d at page 13. See also Magnolia Petroleum Co. v. N. L. R. B., 5 Cir., 200 F.2d 148, 150. Equally wanting in merit, is the argument that the Company’s acts in support of AFL were permissible activity to protect its rights under the contract with that union. Inasmuch as grievance, arbitration and other procedures cannot oust the Board’s jurisdiction, N. L. R. B. v. International Union, etc., 7 Cir., 194 F.2d 698, 702, activities within the realm of unfair labor practices can never qualify as contract rights entitled to protection. Indeed there is no contract right which the Company’s activities at issue herein were designed to protect, unless the employer is attempting to assert a contract right to maintain AFL as the bargaining agent for its employees. Obviously, such a position is fatally inconsistent with the employees’ right to representation by a bargaining agent of their own choice. This part of the order must be enforced. Interference, Coercion and Intimidation. The Board found, and substantial evidence supports the finding, that during the course of the organizational campaign, the Company’s supervisory personnel interrogated employees about their union activities, instructed employees to remove CIO stickers and buttons from their persons and from plant property while they, in some cases, were themselves wearing AFL insignia, that it threatened employees with discharge, added" }, { "docid": "23005733", "title": "", "text": "The issue of discriminatory discharge has four distinct components: (1) the employer testimony, (2) the employee testimony, (3) the Examiner’s findings, and (4) the Board’s inferences from the admitted facts of the case. Here, Cameo management testified that the discharges could not have been discriminatory, because Cameo decided to discharge the men before the union activity even began. The employees testified that Cameo's supervisor and foremen told them that men were going to be fired because of their union activity. The Trial Examiner discredited the employee testimony and credited the employer testimony. The Board, largely relying on inferences from admitted facts, held that the men whose employment was terminated were discriminatorily selected for discharge because of their union activities. Each of these four components creates its own problems. In earlier decisions in this circuit, we have said that because reinstatement of a discharged employee may be considered a penalty, the evidence of discrimination should be compelling. We said, too, that the Board should accept the employer’s testimony if the evidence gives equal support to the employer’s explanation and the inference of discrimination, since the employer, testifying under oath, is in a position to know the motive. N. L. R. B. v. Houston Chronicle, 5 Cir. 1954, 211 F.2d 848; N. L. R. B. v. Tex-O-Kan Flour Mills Co., 5 Cir.1941, 122 F.2d 433. However, many times, too often to cite, we have stated and restated the substantial evidence rule as phrased by the Supreme Court in Universal Camera and Walton. And, at least since our decision in N. L. R. B. v. Coats & Clark, 5 Cir.1956, 231 F.2d 567, 572, we have held that we cannot disturb the Board’s choice if there is a fair conflict between the employer’s testimony and a reasonable inference of discrimination. See N. L. R. B. v. Walton Mfg. Co., 5 Cir.1963, 322 F.2d 187, 189; N. L. R. B. v. Florida Citrus Canners’ Cooperative, 5 Cir.1963, 311 F.2d 541. In N. L. R. B. v. Walton Mfg. Co., 1962, 369 U.S. 404, 409, 82 S.Ct. 853, 7 L.Ed.2d 829, the Supreme Court eliminated" }, { "docid": "23331952", "title": "", "text": "890; NLRB v. Longhorn Transfer Serv., Inc., 5th Cir. 1965, 346 F.2d 1003, 1006. If the specific employee happens to be both inefficient and engaged in union activities, that coincidence standing alone is insufficient to destroy the just cause for his discharge. NLRB v. Soft Water Laundry, Inc., 5th Cir. 1965, 346 F.2d 930, 934. Only if the Board adequately sustains its burden of producing evidence on the record as a whole which establishes a reasonable inference of causal connection between the employer’s antiunion motivation and the employee’s discharge can its order properly be enforced. See NLRB v. Soft Water Laundry, Inc., supra, 346 F.2d at 936; Schwob Mfg. Co. v. NLRB, 5th Cir. 1962, 297 F.2d 864, 868. With these necessarily subjective guidelines before us, we turn to the facts underlying Lewis’ discharge to ascertain whether the Board’s finding of antiunion motivation is supported by substantial evidence on the record as a whole. Whether or not there exists a background of antiunion animus or a widespread pattern of antiunion conduct represents a significant consideration where the true motivation of the employer is ambiguous. Schwob Mfg. Co. v. NLRB, supra, 297 F.2d at 868. Here, the record fails to disclose any labor difficulties between the employer and its employees prior to the occurrence at issue. Eleven of the supermarket’s fourteen employees had signed union authorization cards approximately three months prior to Lewis’ discharge and there is no evidence that anyone had suffered adverse consequences as a result of such union activity. Moreover, there is no indication that Lewis assumed any substantial role in furtherance of union organizational attempts. On the other hand, there is abundant evidence that Lewis was a less than satisfactory employee. Store manager Davis testified that Lewis was the “sorriest employee” he had ever had, and that he would have discharged him earlier were it not for fear that such action might have appeared motivated by antiunion sentiment. Davis further testified that he had reprimanded Lewis on previous occasions concerning eating, smoking, and excessive talking and whispering in the check-out area, and, above all, concerning his discourtesy" }, { "docid": "512629", "title": "", "text": "Plaskolite, Inc. (C.A. 6), 309 F.2d 788, 789. Upon review of the evidence pertaining to the charge that respondent acted diseriminatively when it discharged James Gerding, suspended Gerald Meyer, laid off a number of employees and temporarily shut down its plant, we conclude that, considering the testimony as a whole and the logical inferences drawn therefrom by the Board, its finding that respondent violated Section 8 (a) (3) of the Act is supported by substantial evidence. The Union wrote respondent on September 11 asking to negotiate a contract as bargaining representative of respondent’s employees in an admittedly appropriate unit. Respondent thereupon ran its own election among its employees on September 13 and learned that a majority favored that organization. Respondent, nevertheless, contends that it was under no duty to recognize and bargain with the Union until certified by the Board. This same argument was made and rejected by this Court in N. L. R. B. v. Piqua Munising Wood Products Co., 109 F.2d 552, at p. 556: “This position is untenable. * * * * “ * * * The employer acts at his peril in refusing to recognize a duly selected bargaining agency of an appropriate unit of his employees unless the facts show that in the exercise of reasonable judgment he lacked knowledge of the appropriateness of the unit or the selection of the majority representative.” Also see N. L. R. B. v. Decker (C.A. 8), 296 F.2d 338, p. 341, where the Court stated: “It is too late, in light of the declared wisdom found in the National Labor Relations Act, for an employer to drift into an eddy * * * and now make the contention that he has no duty to bargain with a particular Union until it has been certified by the Board, after an election. Under the N. L. R. B., ‘An employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support.’ N. L. R. B. v. Dahlstrom Metallic Door Co., 2 Cir., 1940, 112 F.2d 756, 757. ‘The Act is clear in intent," }, { "docid": "15015620", "title": "", "text": "Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we may displace the Board’s choices but only if there is an absence of substantial evidence on the record considered as a whole. To determine whether the employer has committed an unlawful discrimination, the courts regularly have looked to the motivation, and when conflicting evidence has been offered as to whether the motive was one of just cause or anti-union animus the inquiry has been pursued to find the dominant motive or the moving force. If an employer motivated by anti-union design discharges an employee, he has violated the statute even though the employee has performed misdeeds which would warrant his dismissal. E.g., N. L. R. B. v. C. & J. Camp, Inc., 5 Cir., 1954, 216 F.2d 113. But if an employee is discharged for cause, the fact that the employer harbors an antipathy toward the employee grounded in anti-unionism does not make the discharge unlawful. E.g., N. L. R. B. v. Birmingham Publishing Company, 5 Cir., 1959, 262 F.2d 2. The evidence that Camp and Bigger vigorously opposed the unionization movement led by Judkins, Camp’s statements that the plant would be shut down rather than allow a union to come in, and his specific threat to McKeithen that he would fire Judkins and Shaw support an inference that Judkins’s discharge was in response to his union leadership. On the other hand, the unchallenged testimony of several witnesses, including fellow employees who signed union cards, that Judkins was a slow, uncooperative, and dangerous worker demonstrates not merely that there was good cause to justify firing Judkins but that it can scarcely be imagined that Judkins, irrespective of his union affiliations, would have been allowed to continue in his job. In the face of this uncontradicted and unimpeached testimony from Judkins’s co-employees we cannot accept as valid the trial examiner’s finding that “the Company seized upon the sweeping incident merely as an excuse to get rid of an active adherent of the Union.” When the evidence of the employee’s misdeeds and the employer’s" }, { "docid": "23331951", "title": "", "text": "see NLRB v. Brown, supra, 380 U.S. at 291, 85 S.Ct. at 988, 13 L.Ed.2d at 849. To justify enforcement of an order of the Board the evidence must do more than merely create a suspicion of the existence of facts upon which the order is based; indeed, a discriminatory act on the part of the employer is not in itself unlawful unless intended to prejudice an employee’s position because of his union activity, i. e., some element of antiunion animus is necessary. See Radio Officers’ Union, etc. v. NLRB, 1954, 347 U.S. 17, 42-44, 74 S.Ct. 323, 337, 98 L.Ed. 455, 478-479. Thus, in controversies involving employee discharges, the motive of the employer is the controlling factor, NLRB v. Brown, supra, 380 U.S. at 287, 85 S.Ct. at 985-986, 13 L. Ed.2d at 846, and, absent a showing of antiunion motivation, an employer may discharge an employee for a good reason, a bad reason, or for no reason at all. NLRB v. I. V. Sutphin, Co-Atlanta, Inc., 5th Cir., February 8, 1967, 373 F.2d 890; NLRB v. Longhorn Transfer Serv., Inc., 5th Cir. 1965, 346 F.2d 1003, 1006. If the specific employee happens to be both inefficient and engaged in union activities, that coincidence standing alone is insufficient to destroy the just cause for his discharge. NLRB v. Soft Water Laundry, Inc., 5th Cir. 1965, 346 F.2d 930, 934. Only if the Board adequately sustains its burden of producing evidence on the record as a whole which establishes a reasonable inference of causal connection between the employer’s antiunion motivation and the employee’s discharge can its order properly be enforced. See NLRB v. Soft Water Laundry, Inc., supra, 346 F.2d at 936; Schwob Mfg. Co. v. NLRB, 5th Cir. 1962, 297 F.2d 864, 868. With these necessarily subjective guidelines before us, we turn to the facts underlying Lewis’ discharge to ascertain whether the Board’s finding of antiunion motivation is supported by substantial evidence on the record as a whole. Whether or not there exists a background of antiunion animus or a widespread pattern of antiunion conduct represents a significant consideration" }, { "docid": "1485041", "title": "", "text": "Hanes Hosiery Division, Hanes Corp., 413 F.2d 457 (4th Cir. 1969); Winchester Spinning Corp. v. N. L. R. B., 402 F.2d 299 (4th Cir. 1968). Moreover, it need not be shown that the proscribed motive was “dominant” — for general counsel carries his burden when it is shown that the employee would not have been discharged but for the anti-union animus of the employer, N. L. R. B. v. Whitfield Pickle Co., 374 F.2d 576 (5th Cir. 1967), or that in the absence of his union activities, the employee would have been treated differently. Frosty Morn Meats, Inc. v. N. L. R. B., 296 F.2d 617 (5th Cir. 1961). We have meticulously and with great effort digested the more than 1,000 pages contained in the record in this case. Viewing that record as a whole and considering the totality of the circumstances, we conclude that the Board’s finding of discriminatory discharge in violation of § 8(a) (3) of the Act is “Based upon such relevant evidence as a reasonable mind might accept as adequate to support it”. N. L. R. B. v. O. A. Fuller Supermarkets, Inc., 374 F.2d 197, 200 (5th Cir. 1967). We are not unduly disturbed by the trial examiner’s contrary conclusion for “[T]he initial choice between two equally conflicting inferences of discriminatory or non-discriminatory employer motivation for an employee discharge is primarily the province of the Board, * * * ” N. L. R. B. v. Coats & Clark, Inc., 231 F.2d 567, 572 (5th Cir. 1956). The inference here drawn by the Board was clearly reasonable and supported by a substantial evidentiary base. In addition to Garcia’s satisfactory work record previously noted, the evidence established that the company’s employees were working a substantial amount of overtime on a regular basis — work which Garcia was qualified to perform. Although Miller testified that the addition of one employee would not have had a substantial impact on the amount of overtime of the other employees — that statement was clearly hindsight for Miller candidly admitted that he had not made a study of it at the time" }, { "docid": "15015619", "title": "", "text": "discharge several other matters corroborated the decision to fire him. Bigger stated that Judkins was a temporary employee hired about eight weeks previously 3 **6who had not proved to be a good worker; that Judkins tended to have moody spells when he did not cooperate well and “would shove the beef into the other men to apparently irritate them.” Judkins, he testified, also had financial problems, and the Company had been bothered several times by having bill collectors come to see him at the plant. He said that the financial problems were not specifically a reason why he fired Judkins, “but it was an accumulation of that type of things, and specifically for not obeying instructions.” The initial burden of proof lies on the General Counsel to present substantial evidence that the discharge came from improper motives. N. L. R. B. v. Miami Coca-Cola Bottling Co., 5 Cir., 1955, 222 F.2d 341. Once this burden is met, the primary function of determining the factual question lies with the Board. Under the substantiality test of Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we may displace the Board’s choices but only if there is an absence of substantial evidence on the record considered as a whole. To determine whether the employer has committed an unlawful discrimination, the courts regularly have looked to the motivation, and when conflicting evidence has been offered as to whether the motive was one of just cause or anti-union animus the inquiry has been pursued to find the dominant motive or the moving force. If an employer motivated by anti-union design discharges an employee, he has violated the statute even though the employee has performed misdeeds which would warrant his dismissal. E.g., N. L. R. B. v. C. & J. Camp, Inc., 5 Cir., 1954, 216 F.2d 113. But if an employee is discharged for cause, the fact that the employer harbors an antipathy toward the employee grounded in anti-unionism does not make the discharge unlawful. E.g., N. L. R. B. v. Birmingham Publishing Company, 5 Cir.," } ]

[ { "docid": "22958805", "title": "", "text": "party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id. “The law is clear that, as contracts, [standard flood insurance policies] issued under the National Flood Insurance Program ... are governed by federal law applying standard insurance law principles.” McHugh v. United Serv. Auto. Assoc., 164 F.3d 451, 454 (9th Cir.1999) (citing Brazil v. Giuffrida, 763 F.2d 1072, 1074-75 (9th Cir.1985)). There is a compelling interest in assuring uniformity of decision in cases involving the NFIP. See Brazil, 763 F.2d at 1075 (quoting West v. Harris, 573 F.2d 873, 881 (5th Cir.1978)). “Since the flood insurance program is a child of Congress, conceived to achieve policies which are national in scope, and since the federal government participates extensively in the program both in a supervisory capacity and financially, it is clear that the interest in uniformity of decision present in this case mandates the application of federal law.” Id. Federal law has long recognized that an insured must comply strictly with the terms and conditions of a federal insurance policy. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947). In Merrill, the Supreme Court recognized a general “duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Id. at 385, 68 S.Ct. 1. The Court held that a group of farmers could not recover for crop losses under a federal crop insurance policy, because their claims did not comply with the terms and conditions for coverage set forth in the Wheat Regulations. See id. In so holding, the Court noted that “not even the temptations of a hard case” may provide a basis for a recovery that is contrary to federal regulations. Id. at 386, 68 S.Ct. 1. In the context of flood insurance, we have recognized the heavy burden that a claimant must overcome in order to avoid the sworn proof of loss requirement in the standard flood insurance policy. See Wagner v. Director, Fed. Emergency Management Agency, 847 F.2d 515," } ]

[ { "docid": "22984766", "title": "", "text": "limit coverage of risks, the plain language of that limitation must be observed. First Nat’l Bank v. Fidelity & Casualty Co., 428 F.2d 499, 501 (7th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 878, 27 L.Ed.2d 811 (1971); General Ins. Co. of Am. v. City of Belvedere, 582 F.Supp. 88, 90 (N.D.Cal.1984); see generally 2 G. Couch, Cyclopedia of Insurance Law § 15:48, at 278-82 (rev. 2d ed. 1984). As the courts have all but universally held, federal flood insurance policies do not cover losses stemming from water-caused earth movements. See Sodowski v. NFIP, 834 F.2d 653, 657-59 (7th Cir.1987); West v. Harris, 573 F.2d 873, 877 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); Kolner v. Director, FEMA, 1983 Fire & Casualty Cas. (CCH) 1129, 1131 (N.D.Ill.1983); Watt v. Giuffrida, 1984 Fire & Casualty Cas. (CCH) 988, 990 (M.D.N.C.1983); Stenersen Corp. v. Giuffrida (In re Stenersen Corp.), 61 B.R. 702, 708 (Bankr.D.Md.1986); cf. Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 137 (1st Cir.1984) (SFIP does not cover damage caused by flood-induced milldam collapse). Plaintiffs point to the one exception in the case law, Quesada v. Director, FEMA, 753 F.2d 1011 (11th Cir.1985). In Quesada, the Eleventh Circuit held that the SFIP covered property damage caused by the settlement and compaction of sand fill under plaintiff’s home where the settlement resulted from saturation of the fill by water from a tropical storm. The court concluded that although an earth movement may have been the immediate cause “in the most literal sense,” the flood was still a proximate cause. Id. at 1014. We do not find Quesada persuasive. As Judge Tjoflat noted in his dissent, the Eleventh Circuit “expanded the policy’s coverage by eliminating the policy exclusion.” Id. at 1014. In converting a single-risk policy into a multiple-risk policy, he warned, “the majority’s interpretation of FEMA’s standard policy affords much wider coverage than is contemplated by the National Flood Insurance Program FEMA administers and could result in premiums beyond the pocketbooks of many of our citizens the program was designed to reach.” Id." }, { "docid": "6318669", "title": "", "text": "Alternatively, plaintiffs contend the state court has concurrent jurisdiction over the matter. A. Federal Question. This issue is not difficult and need only be dealt with briefly. In addressing the question of federal jurisdiction and SFIPs issued in conjunction with the National Flood Insurance Program, the Fourth Circuit has held that “[fjederal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program.” Leland v. Federal Insurance Administrator, 934 F.2d 524, 529 (4th Cir.1991). Similarly, the Fifth Circuit, in West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), stated that “[sjince the flood insurance program is a child of Congress conceived to achieve policies which are national in scope, and since the federal government participates extensively in the program both in a supervisory capacity and financially, it is clear that the interest in uniformity of decision ... mandates the application of federal law ...” These cases evidence the fact that a federal question does exist in the case at hand. The plaintiffs have cited the nature of the funds used for SFIPs as evidence that no federal question exists, characterizing Omaha’s description of the premiums as federal funds from the moment they are collected as misleading. In an amicus brief filed on behalf of the United States in Gowland v. Aetna, 143 F.3d 951 (5th Cir.1998), however, the Government informed the court that “[p]re-miums collected from policy holders by the WYO companies are, after deduction of the companies’ fees and administrative costs, deposited in the National Flood Insurance Fund in the Treasury.” Brief for the United States As Amicus Curiae Supporting Appellee at 3, Gowland v. Aetna Casualty, 143 F.3d 951 (5th Cir.1998)(No. 97-30397). See also 42 U.S.C. § 4017(d). Moreover, the Government explained further that “premiums are federal funds from the moment they are collected, with interest earned thereon belonging to the United States.” Amicus Brief at 3, Gowland (No. 97-30397). See also 44 C.F.R. 62, App.(A), Art. VII(B). This Court agrees that the fact that the SFIP premiums are federal funds lends weight to the conclusion that a federal question does exist. Defendant" }, { "docid": "9528003", "title": "", "text": "Bank of Miami v. Insurance Company of North America, 495 F.2d 519, 522 (5th Cir. 1974) (“[t]here is virtually unanimous acceptance of the proposition that the interpretation of a contract is a question of law, not fact, and, therefore, not restricted to review under the ‘clearly erroneous’ rule”). Hence, we can, and will, make our own examination of the policy of insurance issued to Atlas Pallet to determine whether the district court was correct in denying the insured’s claims. Another preliminary matter which must be dealt with before we get into the merits of this case is the question of which law we are to apply. It is settled that federal law controls disputes over the coverage of insurance policies issued pursuant to the National Flood Insurance Program. West v. Harris, 573 F.2d 873 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979). However, in enacting the NFIP, Congress did not intend to abrogate standard insurance law principles. Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir.1976). In Drewett, “the Court did not hold the statutory or decisional law of any particular state to be applicable. Rather, it applied the ‘traditional common-law technique of decision’ by drawing upon standard insurance law principles.” West v. Harris, 573 F.2d at 881 (citation omitted). Thus, although neither the statutory nor decisional law of any particular state is applicable to the case at bar, we are free to apply the “traditional common law technique of decision by drawing upon standard insurance principles.” Id. In addition, because insurance policies are contracts, basic contract rules govern the interpretation of a policy’s terms. Eagle-Picher Industries v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982) (“[insurance policies are generally interpreted in the same way as other contracts”), cert. denied, — U.S. —, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). We will now proceed to address the district court’s denial of Atlas Pallet’s claims. A. Damage to the Milldam A decision in this case turns on the terms of the policy of insurance issued to Atlas Pallet. Thus, we will" }, { "docid": "2851125", "title": "", "text": "intend to abrogate standard insurance law principles which affect such estimates and risks.” Drewett v. Aetna Casualty & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976); accord Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984). Although the Program “offers subsidized flood insurance, it is designed to operate much like any private insurance company.” Drewett, 539 F.2d at 498. Furthermore, it is well settled that an insurance policy is a contract. See e.g., Clyce v. St. Paul Fire & Marine Ins. Co., 850 F.2d 1398, 1401 (11th Cir.1987). FEMA’s administration of the insurance program does nothing to alter the status of the policies as insurance contracts. As contracts, the standard policies issued under the Program are governed by federal law, see West v. Harris, 573 F.2d 873, 880-81 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979), applying “standard insurance law principles.” Id. at 481; Drewett, 539 F.2d at 498. In construing the policies, it “is a basic tenet of insurance law that each time an insurance contract is renewed, a separate and distinct policy comes into existence.” Hercules Bumpers, Inc. v. First State Ins. Co., 863 F.2d 839, 842 (11th Cir.1989). In this case, the policies applicable to Wright’s losses terminated on September 25, 1985, and September 25, 1986, respectively. These terms, i.e. the policy terms in effect at the time of the flood loss, dictated the contractual conditions of plaintiff’s relationship with the government. The terms provided that the ground level contents of elevated buildings such as Wright’s residence were explicitly excluded from coverage, and we see no contractual grounds for incorporating into the terms a change in regulations that took effect two years after Wright’s applicable policies had expired. Moreover, we see no reason to alter this conclusion by treating the standard policies issued through the Program differently from other insurance contracts, simply because their terms are set forth in the form of administrative regulations. As the Eighth Circuit recently pointed out with regard to the elevated structure exclusion: The regulation at issue is, in effect, a term of an" }, { "docid": "12075714", "title": "", "text": "water. Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program (NFIP). Hanover Building Materials v. Guiffrida, 748 F.2d 1011, 1013 (5th Cir.1984); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); accord Meister Bros. Inc. v. Macy, 674 F.2d 1174, 1175 fn. 2 (7th Cir.1982). Courts applying federal common law to flood insurance policies have recognized that “Congress did not intend to abrogate standard insurance law princi ples” by enacting the NFIP. Atlas Pallet, Inc., 725 F.2d at 135; Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir.1976). Because “neither the statutory nor decisional law of any particular state is applicable to the case at bar, we are [thus] free to apply the ‘traditional common law technique of decision by drawing upon standard insurance principals.’ ” Atlas Pallet Inc., 725 F.2d at 135 (quoting West v. Harris, 573 F.2d at 881); see also Brazil v. Guiffrida, 763 F.2d 1072, 1075 (9th Cir. 1985). Because the interpretation given to an insurance policy is a question of law, our review is de novo. Atlas Pallet, Inc., 725 F.2d at 134. Appellant directs our attention to Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 54 S.Ct. 590, 78 L.Ed. 1137 (1934), for the insurance principles controlling the present dispute. That Court stated: “[W]e are interpreting a contract and are concerned only with the sense in which its words were used_ The phraseology of contracts of insurance is that chosen by the insurer and the contract in fixed form is tendered to the prospective policy holder who is often without technical training, and who rarely accepts it with a lawyer at his elbow. So if its language is reasonably open to two con structions, that more favorable to the insured will be adopted, ... and unless it is obvious that the words are intended to be used in their technical connotation they will be given the meaning" }, { "docid": "14569630", "title": "", "text": "other words, Wagner’s statement was not intended to change the policy terms which define mudflow “as when earth is carried by a current of water____” ER at 32. The Wagner court finds support for its statement in the circuit court opinions of Sodowski v. National Flood Ins. Program of Federal Emergency Management Agency, 834 F.2d 653, 657-59 (7th Cir.1987), and West v. Harris, 573 F.2d 873 (5th Cir.1978). However, the facts in Sodowski and West demonstrate that these cases are completely distinguishable from the present case. Neither Sodowski or West involved a soil mass flowing down a hill caused by heavy rains and overflow of a drainage ditch. As the court pointed out in Sodowski: In West, the court was faced with two similar factual situations, both involving houses built on concrete slabs. There, as in this case, flooding occurred in the area surrounding the two dwellings, and in one instance water also inundated the house. The soil under the insureds’ structures became saturated with water and eventually the soil settled causing structural damage to the dwelling. The court stated that “[r]egardless of whether this settlement had been in process over a long period of time or whether it occurred immediately after the flood and draining of the canals, it was still the result of earth movement.” West v. Harris, 573 F.2d at 877. The court, giving full effect to the earth movement exclusion and disallowing the plaintiffs’ claims, held that “[t]he policy does not cover loss caused by earth movement in the form of soil settlement.” Id. [footnote omitted]. Sodowski, 834 F.2d at 656-57. The court in Wagner also compared the case to Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 137 (1st Cir.1984), which held that a SFIP does not cover damage caused by a flood induced mill dam collapse. A reading of the Gallagher case, however, clearly shows that the issue in that case was whether the mill dam was a structure covered by the policy. There is no question of similar issues of coverage in the present case. Under the reading of the policy urged by" }, { "docid": "14024724", "title": "", "text": "of the Standard Policy the general principle of the doctrine of reasonable expectations, and are referring to the Minnesota law only as illustrative of what the federal common law should be. The considerations that warrant applying the doctrine in a suit against a private insurer, however, may be quite different from those involved in determining the coverage of a federal insurance policy, the language of which is mandated by a federal regulation. To apply the doctrine of reasonable expectations to permit the appellants to recover for flood damage to their “basements” under the Standard Policy, which expressly excludes such damage, would be tantamount to our modifying the underlying federal regulation that prescribes the language of the basement exclusion clause. We decline to take such a far-reaching step, the outer reaches of which cannot be perceived at this time. The judgment of the district court is affirmed. HEANEY, Senior Circuit Judge, dissenting. I respectfully dissent. In particular, I disagree with the majority’s reasoning in Section III of its opinion. The doctrine of reasonable expectations should be applied in this case, and thus the district court’s summary judgment should be reversed because the homeowners have raised genuine issues of material fact regarding their reasonable expectations. Whether the rule of honoring reasonable expectations should be applied to policies issued pursuant to the National Flood Insurance Program (NFIP) is a question of first impression for this court. The merits thus deserve more scrutiny than the majority has offered. The policy expressly provides, and courts have repeatedly held, that federal common law governs the interpretation of the policy. See, e.g., Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987). Courts have further recognized that “in enacting the NFIP, Congress did not intend to abrogate standard insurance law principles.” Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984) (citation omitted). Instead, Congress intended courts to utilize the traditional common law approach and draw upon standard insurance law principles to inform the judiciary’s resolution of NFIP cases. Id. Here, the majority refuses to apply — indeed, it summarily rejects — what is" }, { "docid": "6281119", "title": "", "text": "and 42 U.S.C. § 4072. We begin by dispensing with § 4053; Capital’s reliance on that section was misplaced. Under 42 U.S.C. § 4041, the Director of FEMA may implement the NFIP using one of two different institutional structures, each of which specifies a different role for private insurance companies. The first scheme, described in 42 U.S.C. §§ 4051-4056, includes a provision for suing private insurers, § 4053. The NFIP is, however, not currently implemented under that scheme. It is instead implemented under the alternative structure set forth in 42 U.S.C. §§ 4071-4072. See Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 165 (3d Cir.1998). It is thus clear from the statute and the current implementation of the program that § 4053 does not apply to this suit.. We next turn to 28 U.S.C. § 1331. Under that section, federal courts have federal-question jurisdiction over suits “in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983). The federal cause of action or question of federal law must be apparent from the face of the well-pleaded complaint and not from a defense or anticipated defense. See id. at 9-11, 103 S.Ct. at 2846-47. But the federal question need not be statutory; federal common law will suffice. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 850, 105 S.Ct. 2447, 2451, 85 L.Ed.2d 818 (1985). Here, the complaint alleged, among other things, breach of an SFIP contract. SFIP contracts are interpreted using principles of federal common law rather than state contract law. See, e.g., Carneiro Da Cunha v. Standard Fire Ins. Co./Aetna Flood Ins. Program, 129 F.3d 581, 584 (11th Cir.1997) (‘“As contracts, the standard policies issued under the Program are governed by federal law, applying “standard insurance law principles.” ’ ” (quoting Wright v. Director, Fed. Emergency Mgmt. Agency, 913 F.2d 1566," }, { "docid": "6318668", "title": "", "text": "rates in flood prone areas. Berger v. Pierce, 933 F.2d 393 (6th Cir.1991). The Federal Emergency Management Agency (“FEMA”) assumed principal responsibility for the- program and the promulgation of the SFIP under 42 U.S.C. § 4071. Section 4071 authorizes FEMA to grant or deny flood insurance claims. Pursuant to regulation, FEMA has delegated the authority to issue flood policies to “Write Your Own” (“WYO”) private insurance companies. 44 C.F.R. § 61.13(f). WYO companies issue the SFIPs in their names, collect the premiums in segregated accounts, pay any claims and make necessary refunds under the policy. See Webb v. Aetna, 1997 WL 433500 (E.D.La. July 31, 1997). The WYO receives compensation from the federal government for any claim exceeding funds available in the account by drawing on FEMA letters of credit. Id. at *1. As provided by 44 C.F.R. § 61.13(d), the WYOs are authorized to collect flood insurance premiums, but may not alter any SFIP provision designated by FEMA. II. DISCUSSION Plaintiffs argue that no federal question exists, and, thus, this court lacks proper jurisdiction.- Alternatively, plaintiffs contend the state court has concurrent jurisdiction over the matter. A. Federal Question. This issue is not difficult and need only be dealt with briefly. In addressing the question of federal jurisdiction and SFIPs issued in conjunction with the National Flood Insurance Program, the Fourth Circuit has held that “[fjederal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program.” Leland v. Federal Insurance Administrator, 934 F.2d 524, 529 (4th Cir.1991). Similarly, the Fifth Circuit, in West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), stated that “[sjince the flood insurance program is a child of Congress conceived to achieve policies which are national in scope, and since the federal government participates extensively in the program both in a supervisory capacity and financially, it is clear that the interest in uniformity of decision ... mandates the application of federal law ...” These cases evidence the fact that a federal question does exist in the case at hand. The plaintiffs have cited the nature of the funds used" }, { "docid": "6053945", "title": "", "text": "‘necessarily depends on resolution of a substantial question of federal law.’ ” Interstate Petroleum Corp., 249 F.3d at 219 (quoting Franchise Tax Bd., 463 U.S. at 27, 103 S.Ct. 2841). First, the law is well settled that federal common law alone governs the interpretation of insurance policies issued pursuant to the NFIP. Leland, 934 F.2d at 529. See also Newton, 245 F.3d at 1309; Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 390 (9th Cir.), cert. denied, 531 U.S. 927, 121 S.Ct. 305, 148 L.Ed.2d 245 (2000); Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987); Hanover Bldg. Materials, Inc., 748 F.2d at 1013; Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West, 573 F.2d at 881-82. Second, by force of the regulatory authority granted the Director of FEMA by Congress, Battle’s SFIP “is governed by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001, et seq.), and Federal common law.” 44 C.F.R. Pt. 61, App. A(l), Art. 11. Indeed, Article 11 of Battle’s SFIP contains this exact language. Therefore, at a minimum, Battle’s claim alleging breach of the implied covenant of good faith and fair dealing raises the federal question of whether federal common law implies, as part of a SFIP, a covenant of good faith and fair dealing on the part of a WYO Company towards its insured. Cf. Dow-ney, 266 F.3d at 681-82 (breach of contract claim against WYO Company brought by insured with respect to SFIP issued by the WYO Company, was one in which duties or rights of United States under a federal program were at stake, so that application, and if necessary creation, of federal common law was required, and breach of contract claim thus came within district court’s federal question jurisdiction under § 1331); Newton, 245 F.3d at 1309 (“a complaint alleging breach of an SFIP satisfies § 1331 by raising a substantial federal question”). We also hold that Battle’s complaint establishes that his right to relief upon his so-called “CONVERSION” claim “ ‘necessarily depends" }, { "docid": "11935865", "title": "", "text": "was not a “basement” as defined in the policy. Linder conceded that three sides of the lower level floor were well below ground level, but argued that the floor at the rear side of the building was not below ground level. Without supporting evidence, the insured argued the term “ground level” should be defined as the natural grade existing at the time the building was built, and not as the surface level of the built-up alley. The Magistrate Judge disagreed with Linder and, after a one day bench tidal, entered judgment in favor of Aetna. II. It is well settled that federal common law governs the interpretation of the SFIP at issue here. See McHugh v. United Serv. Auto. Ass’n, 1998 WL 665857, at *2 (9th Cir. Sept. 29,1998); Carneiro Da Cunha v. Standard Fire Ins. Co./Aetna Flood Ins. Program, 129 F.3d 581, 584 (11th Cir.1997); Leland v. Federal Ins. Adm’r, 934 F.2d 524, 529 (4th Cir.1991). Accordingly, “neither the statutory nor decisional law of any particular state is applicable to the case at bar.” Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987) (quotations omitted). We utilize “standard insurance law principles” to construe the SFIP. Id. (quotations omitted); see also Carneiro Da Cunha, 129 F.3d at 584; Leland, 934 F.2d at 530. Under these principles, we interpret the SFIP in accordance with its plain, unambiguous meaning, see Carneiro Da Cunha, 129 F.3d at 585; Sodowski, 834 F.2d at 656, remaining cognizant that its interpretation should be “uniform throughout the country” and that “coverage should not vary from state to state.” Becton, 929 F.2d at 1291. Although exclusions and ambiguities in the policy are strictly construed against the insurer, we must give effect to the “[cjlear policy language,” and refrain from “tor-turfing] the language to create ambiguities.” Seiko v. Home Ins. Co., 139 F.3d 146, 152 n. 3 (3d Cir.1998) (quotations omitted). If the policy is susceptible to two constructions, however, we will adopt the one more favorable to the insured. See Aschenbrenner v. United States Fidelity & Guar. Co., 292 U.S. 80, 84-85, 54 S.Ct. 590," }, { "docid": "12075713", "title": "", "text": "“by settlement of the ground beneath the house, caused by a change in the consistency of the soil when the flood waters surrounded the foundation during the December 1982 flood.” The appellant concedes “that earth movement was the nearest or immediate cause” of his loss but asserts that because the flood waters caused the change in the soil’s consistency, the flooding must be a proximate cause of the structural damage. Sodowski contends that the SFI Policy is ambiguous because under one construction of the policy language, damages resulting from soil settlement, itself caused by flooding, are not covered pursuant to the earth movement exclusion, but under another, more “reasonable construction” of the policy language, these same damages would be covered as a direct loss by flood. Sodowski argues that because the insurance policy is ambiguous, we should construe the language strictly against the insurer and liberally in the insured’s interest; therefore, appellant asserts that the SFI Policy covers the structural damages to his dwelling caused by earth movement, itself caused by an inundation of flood water. Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program (NFIP). Hanover Building Materials v. Guiffrida, 748 F.2d 1011, 1013 (5th Cir.1984); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); accord Meister Bros. Inc. v. Macy, 674 F.2d 1174, 1175 fn. 2 (7th Cir.1982). Courts applying federal common law to flood insurance policies have recognized that “Congress did not intend to abrogate standard insurance law princi ples” by enacting the NFIP. Atlas Pallet, Inc., 725 F.2d at 135; Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir.1976). Because “neither the statutory nor decisional law of any particular state is applicable to the case at bar, we are [thus] free to apply the ‘traditional common law technique of decision by drawing upon standard insurance principals.’ ” Atlas Pallet Inc., 725 F.2d at 135 (quoting West v. Harris, 573 F.2d at 881);" }, { "docid": "6281120", "title": "", "text": "of a substantial question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983). The federal cause of action or question of federal law must be apparent from the face of the well-pleaded complaint and not from a defense or anticipated defense. See id. at 9-11, 103 S.Ct. at 2846-47. But the federal question need not be statutory; federal common law will suffice. See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 850, 105 S.Ct. 2447, 2451, 85 L.Ed.2d 818 (1985). Here, the complaint alleged, among other things, breach of an SFIP contract. SFIP contracts are interpreted using principles of federal common law rather than state contract law. See, e.g., Carneiro Da Cunha v. Standard Fire Ins. Co./Aetna Flood Ins. Program, 129 F.3d 581, 584 (11th Cir.1997) (‘“As contracts, the standard policies issued under the Program are governed by federal law, applying “standard insurance law principles.” ’ ” (quoting Wright v. Director, Fed. Emergency Mgmt. Agency, 913 F.2d 1566, 1570-71 (11th Cir.1990))). Thus, a complaint alleging breach of an SFIP satisfies § 1331 by raising a substantial federal question on its face. This leaves us only to question whether 42 U.S.C. § 4072, the provision for suits against FEMA under the NFIP as currently implemented, affects our jurisdiction. On its face, § 4072 provides only for suits against FEMA. It does not discuss the WYO program, and we therefore do not read it as addressing suits against WYO companies. It does not, therefore, abrogate § 1331 jurisdiction. See Carneiro Da Cunha, 129 F.3d at 586-87 (implicitly recognizing federal subject-matter jurisdiction over a suit against a WYO company after the implementation of § 4072). We need not consider the opposite question; whether it provides an additional basis for jurisdiction against WYO companies, see Van Holt, 163 F.3d at 165-66 (finding WYO companies subject to jurisdiction under § 4072 (as well as § 1331) because a suit against a WYO company is the “functional equivalent” of a suit against FEMA), because our conclusion regarding jurisdiction under" }, { "docid": "1001231", "title": "", "text": "interpretation of NFIP policies.” Berger v. Pierce, 933 F.2d 393, 397 (6th Cir.1991). Thus, in Berger we affirmed the district court's dismissal of state-law contract claims because those claims were preempted by federal law. Similarly, the Gibsons' claim that American breached the terms of the WYO policy itself is clearly preempted by federal law and subject to exclusive federal jurisdiction. See also, e.g., Sodowski v. Nat’l Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987) (\"Federal common law controls the interpretation of insurance policies issued pursuant to the [NFIP].''), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 619 (1988); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984) (\"It is settled that federal law controls disputes over the coverage of insur-anee policies issued pursuant to the [NFIP].''); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979) (\"In sum, federal law controls disputes over the coverage of insurance policies issued pursuant to the [NFIA] ....”). The difficulty is that the Gibsons primarily alleged state-law tort claims rather than contractual claims. . The majority opinion is not clear as to which preemption doctrine it is applying in the present case. For this reason, I analyze the issue under all three doctrines. . This interpretation of the NFIA is informed, in part, by the Supreme Court’s recent opinion in Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). In Geier, the Court posited that a saving clause, 15 U.S.C. § 1397(k), included in the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 et seq., \"assume[d]” the existence of \"some significant number of common-law liability cases to save.” Geier, 529 U.S. at 868, 120 S.Ct. 1913. The Court thus concluded that \"a reading of the [statute's] express pre-emption provision that excludes common-law tort actions gives actual meaning to the saving clause’s literal language, while leaving adequate room for state tort law to operate.” Id. Similarly, in the present case, to hold that § 4072 expressly preempts" }, { "docid": "6053944", "title": "", "text": "Battle’s complaint alleged that, by virtue of his SFIP, SCIC impliedly covenanted to act in good faith and to deal fairly with him in connection with any claim that he made under his SFIP; and that SCIC breached this covenant by refusing to settle the Bertha Claim and the Fran Claim in good faith, by refusing to acknowledge his damage estimates with respect to those claims, and by refusing to assign qualified agents to identify and estimate the amount of damages to the Property. Count Ten of Battle’s complaint alleged (in a claim entitled “CONVERSION”) that, until May 4, 1999, SCIC wrongfully asserted dominion and control of $6,195.15 due him under his SFIP and in the form of a check made payable to him and Glasgow Hicks. Battle’s complaint does not specify upon what law, state or federal, he premises either of these claims. Accordingly, we cannot conclude that Battle’s complaint establishes that federal law creates either claim. However, we do conclude that Battle’s complaint establishes that Battle’s right to relief under either claim “ ‘necessarily depends on resolution of a substantial question of federal law.’ ” Interstate Petroleum Corp., 249 F.3d at 219 (quoting Franchise Tax Bd., 463 U.S. at 27, 103 S.Ct. 2841). First, the law is well settled that federal common law alone governs the interpretation of insurance policies issued pursuant to the NFIP. Leland, 934 F.2d at 529. See also Newton, 245 F.3d at 1309; Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 390 (9th Cir.), cert. denied, 531 U.S. 927, 121 S.Ct. 305, 148 L.Ed.2d 245 (2000); Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987); Hanover Bldg. Materials, Inc., 748 F.2d at 1013; Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West, 573 F.2d at 881-82. Second, by force of the regulatory authority granted the Director of FEMA by Congress, Battle’s SFIP “is governed by the flood insurance regulations issued by FEMA, the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001, et seq.), and Federal common law.” 44 C.F.R. Pt. 61, App. A(l)," }, { "docid": "7141988", "title": "", "text": "See 44 C.F.R. Pt. 62, app. A, art. VII(B). Generally, SFIP’s should be interpreted in a fashion that ensures uniform interpretation throughout the country, avoidiixg state-to-state coverage variances. Cameiro Da Cunha v. Standard Fire Ins. CoJAetna Flood Ins. Program, 129 F.3d 581, 584 (11th Cir.1997); Suopys v. Omaha Property & Casualty, 404 F.3d 805, 809 (3d Cir.2005). Moreover, under the Appropriations Clause of the United States Constitution, entitlement to payment under a SFIP must derive from a federal statute. See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). Thus, it is well established that SFIP contracts are interpreted using federal statutory and common law rather than state law, and states have no regulatory control over the NFIP. Newton v. Capital Assurance Co., Inc., 245 F.3d 1306, 1309 (11th Cir.2001)(citing Cameiro Da Cunha v. Standard Fire Ins. CoJ Aetna Flood Ins. Program, supra, 129 F.3d at 584); C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263, 267 (3d Cir.2004); Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978); Levitus v. Omaa Prop. & Cas. Ins. Co., Docket No. 3:97cv84/RV (N.D. Fla., May 21, 1997). In Linder & Assoc., Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547 (3d Cir.1999), the Third Circuit held: “(Neither the statutory nor decisional law of any particular state is applicable to the case at bar ... [W]e interpret the SFIP in accordance with its plain, unambiguous meaning, remaining cognizant that its interpretation should be ‘uniform throughout the country’ and that ‘coverage should not vary from state to state.’ ” Id. at 550 (citing Cameiro Da Cunha, supra, 129 F.3d at 585). Based on this well established precedent, to the extent that the plaintiffs’ complaint alleges that Florida’s Valued Policy Law should be applied to interpret the terms of their flood insurance policy, the plaintiffs’ claim is preempted by federal law, and Fidelity’s motion for judgment on the pleadings will be granted with respect to the Florida Value Policy Law Claim. C." }, { "docid": "9672470", "title": "", "text": "Cooter & Gell v. Hartmarx Corp., — U.S. -, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253 (2d Cir.1985). The district court correctly held as to Count V that a Bivens claim may not be asserted against a federal officer in his official capacity, and, in addition, we think that the FIA administrator has an unqualified immunity to claims of this nature. Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984); Sanchez-Mariani v. Ellingwood, 691 F.2d 592 (1st Cir.1982); see also Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Butz v. Economou, 438 U.S. 478, 512-14, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978). The state law claims set forth in Counts VI and VII are deficient for a number of reasons. As to Count VI, we are in accord with the holdings of several other courts of appeals that federal common and statutory law preempts state principles of contracts law for purposes of the interpretation of NFIP policies, as is expressly stated in the policy. Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir. 1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 619 (1988); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West v. Harris, 573 F.2d 873 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979). The district court properly noted as to Count VII that the Federal Tort Claims Act does not waive the sovereign immunity of the United States with respect to claims predicated upon misrepresentations. 28 U.S.C. § 2680(h). Plaintiffs also allege as error the district court’s refusal to permit discovery. Each of the rulings of the district court which we have upheld was ruled upon as a matter of law and could not have been altered by discovery. There was no material error. As to Count I, which is to be remanded to district court, the district court may now open" }, { "docid": "16440934", "title": "", "text": "Springfield Terminal R. Co., 210 F.3d 18, 26 (1st Cir.2000) (Railway Labor Act case); Chicago Truck Drivers Union v. Tasemkin, Inc., 59 F.3d 48, 49 (7th Cir.1995) (ERISA case); G-K-G, 39 F.3d at 747-48 (ADEA case); Leib v. Georgia-Pac. Corp., 925 F.2d 240, 246 (8th Cir.1991) (adopting federal common law approach for determining successorship liability for a claim under the Vietnam Era Veterans’ Readjustment Assistance Act that is similar to the approach used under the National Labor Relations Act). Because these cases arose in the context of labor law and pension litigation, they do not necessarily extend to the patent judgment enforcement context. To determine whether the standards for successor liability for a patent judgment derive from federal or state common law, this Court must apply the Supreme Court’s decision in Atherton v. Fed. Deposit Ins. Corp., 519 U.S. 213, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997). In Atherton, the Resolution Trust Corporation (later replaced by the FDIC) sued several officers and directors of a savings association for violating the standard of care they owed the federally-chartered and federally-insured savings associations. The initial question for the Court was whether that standard of care was defined by federal common law. The Court explained that “federal common law” refers to “a rule of decision that amounts, not simply to an interpretation of a federal statute or a properly promulgated administrative rule, but, rather, to the judicial ‘creation’ of a special federal rule of decision.” Id. at 218, 117 S.Ct. 666 (citations omitted). Critically, the Court noted that “ ‘cases in which judicial creation of a special federal rule would be justified ... are ... ‘few and restricted.’ ’ ” Id. (quoting O’Melveny & Myers v. FDIC, 512 U.S. 79, 87, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994)) (internal quotation marks and citation omitted). Further, the existence of related federal statutes does not automatically show that Congress intended courts to create federal common-law rules, “for ‘ Congress acts... against the background of the total corpus juris of the states....’” Id. (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct." }, { "docid": "1001230", "title": "", "text": "allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period ....”); Burnett v. N.Y. Cent. R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (“Statutes of limitations are primarily designed to assure fairness to defendants.”). Having considered the Andrews v. Orr factors, I would conclude that the equities in the present case weigh in favor of equitable tolling. Given that Congress has not indicated that equitable tolling is not permitted under the NFIA, I would hold that the one-year statute of limitations was tolled by the Gibsons’ filing in state court and thus that the district court erred in holding that their claims were time-barred. III. For the foregoing reasons, I respectfully dissent from those parts of the majority’s opinion holding that federal law preempts the Gibsons’ state-law tort claims and that equitable tolling does not apply. . We have previously held that \"federal common and statutory law preempts state principles of contracts law for purposes of the interpretation of NFIP policies.” Berger v. Pierce, 933 F.2d 393, 397 (6th Cir.1991). Thus, in Berger we affirmed the district court's dismissal of state-law contract claims because those claims were preempted by federal law. Similarly, the Gibsons' claim that American breached the terms of the WYO policy itself is clearly preempted by federal law and subject to exclusive federal jurisdiction. See also, e.g., Sodowski v. Nat’l Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987) (\"Federal common law controls the interpretation of insurance policies issued pursuant to the [NFIP].''), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 619 (1988); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984) (\"It is settled that federal law controls disputes over the coverage of insur-anee policies issued pursuant to the [NFIP].''); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979) (\"In sum, federal law controls disputes over the coverage of insurance policies issued pursuant to the [NFIA] ....”). The difficulty is that the" }, { "docid": "22984765", "title": "", "text": "issue of coverage in this case is therefore determined, in our view, by the SFIP’s earth movement exclusion, which expressly precludes coverage for losses caused by landslides. See Quesada v. Director, FEMA, 753 F.2d 1011, 1015 (11th Cir.1985) (Tjoflat, J., dissenting) (“the ‘earth movement’ policy exclusion is dispositive”). Plaintiffs argue that even if the landslide was the immediate cause of the damage, the flood was a direct and proximate cause. The district court adopted this reasoning, holding that the SFIP covered the loss because the “ ‘flood’ set in motion the events leading to the damage to plaintiffs’ homes.... Although the landslide, an excluded risk, was in a ‘strained’ sense, the immediate cause of the damage, the water saturation was and is the proximate cause.” 658 F.Supp. at 1538. The district court erred. While the regulations and federal common law govern construction of the SFIP, see SFIP, art. X, “Congress did not intend to abrogate standard insurance law principles.” Brazil v. Giuffrida, 763 F.2d 1072, 1075 (9th Cir.1985). Where the insurer exercises its right to limit coverage of risks, the plain language of that limitation must be observed. First Nat’l Bank v. Fidelity & Casualty Co., 428 F.2d 499, 501 (7th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 878, 27 L.Ed.2d 811 (1971); General Ins. Co. of Am. v. City of Belvedere, 582 F.Supp. 88, 90 (N.D.Cal.1984); see generally 2 G. Couch, Cyclopedia of Insurance Law § 15:48, at 278-82 (rev. 2d ed. 1984). As the courts have all but universally held, federal flood insurance policies do not cover losses stemming from water-caused earth movements. See Sodowski v. NFIP, 834 F.2d 653, 657-59 (7th Cir.1987); West v. Harris, 573 F.2d 873, 877 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); Kolner v. Director, FEMA, 1983 Fire & Casualty Cas. (CCH) 1129, 1131 (N.D.Ill.1983); Watt v. Giuffrida, 1984 Fire & Casualty Cas. (CCH) 988, 990 (M.D.N.C.1983); Stenersen Corp. v. Giuffrida (In re Stenersen Corp.), 61 B.R. 702, 708 (Bankr.D.Md.1986); cf. Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 137 (1st Cir.1984) (SFIP does not" } ]

[ { "docid": "18438894", "title": "", "text": "It was the plan of the Walkers to develop the property as a residential subdivision by dredging canals and using the spoil to increase the elevation of the remaining property, thus converting the unusable swamp into desirable waterfront property. The Walkers originally contemplated doing the development work as a partnership and the work was underway before the conveyance to the corporation was made. The income tax return of the partnership reported the transfer to the corporation as an installment sale which resulted in a long-term capital gain. The corporation borrowed money and gave mortgages as security. ' Forrest Walker, the father, made two unsecured loans, each in the amount of $10,000, to the corporation. During the years 1950, 1951, and 1952, the taxpayer’s income tax returns computed gains from the sales of lots on the basis of an overall land cost of $250,000. The Commissioner of Internal Revenue determined that the basis of the property to the corporation taxpayer was $69,291, the same as the basis of the Walkers. Deficiencies resulting from the Commissioner’s determination of the taxes were assessed. The Tax Court sustained the Commissioner. Aqualane Shores, Inc. v. Commissioner, 30 T.C. 519. The Tax Court found that, aside from the tax advantages to be gained, the principal purposes for incorporation were to facilitate the raising of capital and to expedite and simplify the processes incident to sales.' It assumed, from the evidence, that the property when acquired by the corporation had a fair market value of approximately $250,000. After finding that the exchange of checks between the partnership and the corporation was a wash-out transaction, the Tax Court concluded that the January 10th, 1950, transaction did not create a bona fide debtor-creditor relationship between the corporation and the Walkers, and that the transfer was, in substance, a transfer of land solely in exchange for stock of the taxpayer and is governed by the provisions of Section 112(b) (5) of the Internal Revenue Code of 1939. From this it followed, and the Tax Court so held, that the basis to the corporation is the same as the basis to" } ]

[ { "docid": "11930813", "title": "", "text": "the question of whether the stepped-up basis can be sustained. At least in a formal way this turns on the question whether these notes were to be classified as “stock” or “securities” within the purview of § 112(b) (5) of the 1939 Code which provides in material part that no gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or security in such corporation. Section 113(a) of the 1939 Code provides that as a gen eral rule the basis of property for the purpose of determining gain or loss — and under § 114(a), (b) for the purpose also of computing depreciation and depletion allowances — shall be the “cost” of such property. The exception pertinent here is contained in § 113(a) (8) which provides that where property is acquired by a corporation in an exchange governed by § 112(b) (5), or as paid-in surplus or as a contribution to capital, the basis of the property shall be the same as it would be in the hands of the transferor. These provisions remain basically unchanged in the 1954 Code. Thus if these notes were “stock” or “securities” Taxpayer must use Foundation’s basis for depletion and depreciation, rather than the actual purchase price and fair market value of the depreciable and depletable assets. While it may appear to pose some conceptual difficulties, tax law is hardly a complete symmetry. Consequently, the decision under Part I that the notes represent a genuine indebtedness does not automatically solve the problem of basis. So-called bona fides is not decisive. The question still remains whether businessmen acting with all honor and sincerity have, or have not, set up a transaction which tax law regards as “stock” or “securities.” It therefore remains our lot to determine the correctness of the Court’s holding that these notes were not “stock” or “securities” within the meaning of the applicable sections of the Code. Both parties rely strongly on Camp Wolters Enterprises, Inc. v. Commissioner, 5 Cir., 1956, 230 F.2d 555, and Aqualane Shores, Inc. v." }, { "docid": "11930814", "title": "", "text": "it would be in the hands of the transferor. These provisions remain basically unchanged in the 1954 Code. Thus if these notes were “stock” or “securities” Taxpayer must use Foundation’s basis for depletion and depreciation, rather than the actual purchase price and fair market value of the depreciable and depletable assets. While it may appear to pose some conceptual difficulties, tax law is hardly a complete symmetry. Consequently, the decision under Part I that the notes represent a genuine indebtedness does not automatically solve the problem of basis. So-called bona fides is not decisive. The question still remains whether businessmen acting with all honor and sincerity have, or have not, set up a transaction which tax law regards as “stock” or “securities.” It therefore remains our lot to determine the correctness of the Court’s holding that these notes were not “stock” or “securities” within the meaning of the applicable sections of the Code. Both parties rely strongly on Camp Wolters Enterprises, Inc. v. Commissioner, 5 Cir., 1956, 230 F.2d 555, and Aqualane Shores, Inc. v. Commissioner, 5 Cir., 1959, 269 F.2d 116. Taxpayer also places emphasis on Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171. In Aqualane Shores, a corporation was organized by a father and two sons, each of whom contributed $3,200 for its capital stock. They then conveyed to the corporation substantially all of the land which they had acquired a few months earlier as a partnership which had a cost to them of $69,000 for a total consideration of $250,000, a major part of which was to be paid for by the corporation’s execution of five annual installment notes. The land was for the most part mangrove swamp which had to be dredged in order to make it marketable. The corporation gave mortgages as security for money it borrowed to develop the swamp. The tax question presented was the basis of the land. We held that the corporation held the land on the same basis as its transferors, strongly emphasizing such factors as: the corporation only had $600 of operating funds; it could" }, { "docid": "11930815", "title": "", "text": "Commissioner, 5 Cir., 1959, 269 F.2d 116. Taxpayer also places emphasis on Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171. In Aqualane Shores, a corporation was organized by a father and two sons, each of whom contributed $3,200 for its capital stock. They then conveyed to the corporation substantially all of the land which they had acquired a few months earlier as a partnership which had a cost to them of $69,000 for a total consideration of $250,000, a major part of which was to be paid for by the corporation’s execution of five annual installment notes. The land was for the most part mangrove swamp which had to be dredged in order to make it marketable. The corporation gave mortgages as security for money it borrowed to develop the swamp. The tax question presented was the basis of the land. We held that the corporation held the land on the same basis as its transferors, strongly emphasizing such factors as: the corporation only had $600 of operating funds; it could only pay off the notes if and when it sold land; and almost no payments of interest or principal were made. The Camp Wolters case involved capital assets which were purchased, substantially contemporaneously with its formation, by the corporate taxpayer from its stockholders at a cost greater than the stockholders’ basis. In turn, the stockholders received notes, payable within five to nine years, for the balance of the purchase price after a cash down payment. Immediately after their issuance, and according to a pre-existing plan, these notes were subrogated to a large bank loan, so that the payment of the notes was entirely dependent on the taxpayer’s ability to market profitably the lands and buildings which it had acquired, and no payment could have been made on the notes until the large bank loan was entirely discharged. In that case, we affirmed the Tax Court’s determination that these notes were “securities” within the meaning of § 112(b) (5) of the 1939 Code. In Sun Properties we dealt with the basis which that company had in" }, { "docid": "11930817", "title": "", "text": "a warehouse property it acquired from its sole stockholder. The entire paid-in capital of this corporation was something less than $500. A few days after its organization, its sole stockholder transferred to it a warehouse building and the land upon which it was located for $125,000 to be paid at the rate of $4,000 each six months, with no interest being provided for, and with no purchase-money lien retained. At the time of this sale the warehouse was under a very favorable lease, from which in the first year of ownership the corporation derived net profit of $21,000. The Commissioner disallowed depreciation based on the purchase price of the warehouse. This was sustained by the District Court. We reversed in an opinion holding that the transfer of the warehouse to the taxpayer was not a contribution to capital (which would require the use of the same basis as in the hands of the transferor) but was a bona fide sale entitling the corporate taxpayer to use its cost for depreciation purposes. Although not directly in point, our recent case of United States v. General Geophysical Co., 5 Cir., 1961, 296 F.2d 86, may be added to this list. In that case, several stockholders of a closely owned corporation decided to retire their stock. To accomplish this, the stockholders transferred their stock to the corporation in return for which they received cash and corporate properties equal to the fair market value of the stock. A few hours later the corporation purchased this same property from the stockholders issuing notes secured by mortgages. The cost of the property when re-acquired by the corporation was greater than the basis the property originally had in the hands of the corporation since it then reflected fair market value. There we refused to allow the corporation a stepped-up basis for depreciation purposes. In doing so we said, “that for tax purposes there was not a sufficient severance of the corporation’s ownership over the assets for the transaction to create the tax consequence that when the corporation reacquired the assets it took them with a stepped-up basis.”" }, { "docid": "18438896", "title": "", "text": "the Walker partnership prior to the exchange pursuant to Section 113(a) (8) of the Internal Revenue Code of 1939, 26 U.S.C.A. (I.R.C.1939) § 113(a) (8). From the decision of the Tax Court, entered in accordance with its opinion, the taxpayer corporation has appealed. The corporation started in business with the land acquired from the stockholders and six hundred dollars in money, or such part of that sum as may have remained after the payment of its or ganization expense. The agreement between stockholders and corporation showed a corporate indebtedness for purchase money of $241,000 which was more than 96% of the recited purchase price of the land. Its equity was narrowly margined and its working capital was practically nil. Its only asset was an area of mangrove swamp. The only source from which the corporation could expect revenues was from the sale of lands. Only a very small part of the land had been cleared and filled. It was of a kind and character that required the expenditure of substantial amounts of money in order to put it in marketable condition. Funds for this purpose were borrowed. No payments of principal or interest were made by the corporation to the Walkers during the years 1951 through 1954, except a payment or credit of $8,000 made in 1950 upon the 1951 installment. The taxpayer eorporation relies heavily upon the opinion in Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171, as being “on all fours” with its case. In the Sun Properties case the taxpayer was incorporated by the owner of property to whom three shares of one dollar par value stock were issued. The trans-feror then transferred to the corporation a warehouse building for a recited consideration of $125,000 payable in semiannual installments of $4,000. At the time the sale was made the operation of the warehouse was very profitable. During the year in which the sale was made the net profits from operation of the warehouse were in excess of $21,000. The district court sustained the Commissioner’s determination that the transfer of the property was not" }, { "docid": "18438899", "title": "", "text": "Cf. Rowan v. United States, 5 Cir., 1955, 219 F.2d 51. The taxpayer corporation, Aqualane Shores, Inc., after its exchange of checks with its incorporating stockholders had $600 of operating funds. Payment of what it had agreed to pay for the undeveloped land which the corporation had acquired could be made only if and when sales of the land were made and proceeds of such sales were received. The controlling consideration in determining whether the obligations of a corporation given by it as the recited consideration for the transfer of property are to be regarded as representing purchase money or as a security received in a Section 112 exchange “is an overall evaluation of the nature of the debt, degree of participation and continuing interest in the business, the extent of proprietary interest compared with the similarity of the note to a cash payment, the purpose of the advances, etc.” Camp Wolters Enterprises, Inc. v. Commissioner, 22 T.C. 737, affirmed 5 Cir., 1956, 230 F.2d 555, certiorari denied 352 U.S. 826, 77 S.Ct. 39, 1 L.Ed.2d 49. The payment of obligations of the corporation to its transferors, the stockholders of the corporation, was dependent upon and at the risk of the success of the venture. The obligations were a participation in the pot luck of the enterprise. Camp Wolters Enterprises, Inc. v. Commissioner, supra. The contract and the obligations of it are, we think, “securities” of the Corporation within the meaning of the statute, 3 Mertens Law of Federal Income Taxation, Ch. 20, p. 119, § 20.47. The Tax Court, after considering all of the factors, reached the conclusion that “there was in substance an exchange by the partners of property in return for a proprietary equity in the corporation equivalent for tax purposes (which are concerned with economic realities) to a transaction covered by the provisions of Section 112(b) (5).” In the Sun Properties case the income from the property transferred was such as to require the conclusion that the obligation could be paid from it leaving the capital assets unimpaired. Here the property was not income producing and" }, { "docid": "21446048", "title": "", "text": "the facts authorize the inference of an intent to make a contribution to capital. Rowan v. United States, 5th Cir., 1955, 219 F. 2d 51. Evidence which may tend to prove that a transaction was a contribution to capital may be of many sorts. Sun Properties v. United States, 5th Cir., 1955, 220 F.2d 171; Aqualane Shores, Inc. v. Commissioner [of Internal Revenue], 5th Cir., 1959, 269 F.2d 116. No comprehensive rule can be stated which will be applicable in all cases. Commissioner [of Internal Revenue] v. T. R. Miller Mill Co., 5th Cir., 1939, 102 F.2d 599.” The United States Court of Appeals for the Sixth Circuit in United States v. Title Guarantee & Trust Co., 133 F.2d 990, in considering the distinction between a stockholder and a creditor, stated: “The essential difference between . a stockholder and a creditor is that the stockholder’s intention is to embark upon the corporate adventure, taking the risks of loss attendant upon it, so that he may enjoy the chances of profit. The creditor, on the other hand, does not intend to take such risks so far as they may be avoided, but merely to lend his capi tal to others who do intend to take them.” (Emphasis in original.) In Aqualane Shores, Inc. v. Commissioner of Internal Revenue, 269 F.2d 116, and Camp Wolters Enterprises, Inc. v. Commissioner of Internal Revenue, 230 F.2d 555, an application of these criteria was made by the United States Court of Appeals for the Fifth Circuit in determining that certain alleged debt instruments were “stock or securities” within the meaning of the applicable statute. An application of these principles as outlined in Montclair, Inc. v. Commissioner of Internal Revenue, supra, to the facts in this case requires, as stated above, a finding and conclusion that the advances in question represented a capital investment rather than a debt investment. As a matter of fact, the evidence in this case is even stronger than that in Montclair in demonstrating an intent on the part of Henderson and the other stockholders, to contribute the amounts of the advances" }, { "docid": "11930812", "title": "", "text": "Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171; Farley Realty Corp. v. Commissioner, 2 Cir., 1960, 279 F.2d 701, and there are many cases holding both pro and con on this issue, e. g., United States v. Title Guarantee & Trust Co., 6 Cir., 1943, 133 F.2d 990; Gooding Amusement Co. v. Commissioner, 6 Cir., 1956, 236 F.2d 159; Kraft Foods Co. v. Commissioner, 2 Cir., 1956, 232 F.2d 118, some of which have attempted to set down guidelines for the future, e. g., Brake & Electric Sales Corp. v. United States, D.C.Mass., 1960, 185 F.Supp. 1, aff’d, 1 Cir., 1961, 287 F.2d 426. It would serve no useful purpose for us to distinguish the eases relied on by the Government or to determine whether in the light ’ of our holdings we would accept them as authoritative. But we hold that under the circumstances of this record, a bona fide indebtedness existed and Taxpayer is entitled to deduct the interest it actually paid to Foundation. II. We come now to the question of whether the stepped-up basis can be sustained. At least in a formal way this turns on the question whether these notes were to be classified as “stock” or “securities” within the purview of § 112(b) (5) of the 1939 Code which provides in material part that no gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or security in such corporation. Section 113(a) of the 1939 Code provides that as a gen eral rule the basis of property for the purpose of determining gain or loss — and under § 114(a), (b) for the purpose also of computing depreciation and depletion allowances — shall be the “cost” of such property. The exception pertinent here is contained in § 113(a) (8) which provides that where property is acquired by a corporation in an exchange governed by § 112(b) (5), or as paid-in surplus or as a contribution to capital, the basis of the property shall be the same as" }, { "docid": "21469158", "title": "", "text": "Revenue, 6 Cir., 236 F.2d 159. This intent is not necessarily determined by the form of the transaction, but by its substance, or by what was actually done. Bauman v. United States, 106 F.Supp. 384, 387 (D.C.Mo.). The determination of the nature of the transaction is not a subjective one based upon the intent of the parties, but -is to be ascertained from an overall evaluation of the nature of the debt which is based upon many factors. Camp Wolters Enterprises v. Commissioner of Internal Revenue, 230 F.2d 555 (C.A.5); Rowan v. United States, 219 F.2d 51, 54 (C.A.5); Sun Properties v. United States, 220 F.2d 171, 175, 176 (C.A.5). The case of Aqualane Shores, Inc. v. Commissioner of Internal Revenue, 269 F.2d 116 (C.A.5) involved facts similar to those in the case under consideration. In that case, a father and two sons, who were landscaping and grading contractors, operated as a partnership in the name of Walker Construction Company. In May, 1949, the partners acquired approximately 175 acres of land at Naples, Florida, at a price of something more than $69,000. Purchase money mortgages were given for a substantial portion of the price. In December, 1949, the Walkers caused the taxpayer, Aqua-lane Shores, Inc., to be incorporated under the Florida law. Ten shares of stock were issued to each of the three Walkers for $320.00 per share. The Walkers conveyed the land to the corporation and executed an agreement in which it was stated that the consideration for the transfer was $250,000.00, of which $9,-000.00 was paid in cash, an unpaid amount of $49,128.88 on the mortgages was assumed, leaving a balance of $191,871.12 payable in five equal annual installments bearing interest at 4%. The land was, for the most part, mangrove swamp. It was the plan of the Walkers to develop the property as a residential subdivision. The partnership reported the transfer to the corporation as an installment sale which resulted in a long-term capital gain. The corporation borrowed money and gave mortgages as security. The father made two unsecured loans, each in the amount of $10,000, to" }, { "docid": "6194504", "title": "", "text": "within the meaning of Section 112(b) (5) of the Internal Revenue Code of 1939. Although the time period of a note is a fact to be taken into consideration in determining whether it is a stock or security, Chief Judge Hutcheson pointed out that, notwithstanding the fact that the notes had all been redeemed within two years, they were not short-term loans nor were they for “current corporate needs” but were “participation.” 230 F.2d at page 560. Two other related cases arising out of a single factual situation are also pertinent. They are Perrault v. Commissioner, 10 Cir., 1957, 244 F.2d 408, affirming 1955, 25 T.C. 439, and Houck v. Hinds, 10 Cir., 1954, 215 F.2d 673. There, five partners in a paint manufacturing and distributing business organized a corporation to which business assets worth $582,773.54 were transferred and subscribed for $50,000 in capital stock, of which only $1,000 was then paid. Short-term notes amounting to $50,000 to become due within three months were issued to the incorporators. Ten-year interest bearing installment notes amounting to $532,773.54 were also issued for the balance due for the business assets which had been transferred. The courts there held that payments made on both the short and long term notes were dividend distributions for income tax purposes in that the transfer of the partnership assets was for a stock interest in the corporation. It is significant that some of the notes issued at the organization of the corporation and maturing within only three months were considered obligations to distribute dividends. It also may be observed that there is even more of an imbalance toward indebtedness as opposed to stated capital in the financial structure here than in the cited cases. The principal cases which plaintiffs urge in support of their contention are Associated Investors, Inc. v. United States, D.Kan., 1956, Par. 9396, 57-1 U.S.T.C. 56,695; J. I. Morgan, Inc., 1958, 30 T.C. 881; Warren H. Brown, 1956, 27 T.C. 27; Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171; Leonard J. Erickson, Par. 56,256 P-H Memo.T.C. (1956). In several important factors," }, { "docid": "18438895", "title": "", "text": "of the taxes were assessed. The Tax Court sustained the Commissioner. Aqualane Shores, Inc. v. Commissioner, 30 T.C. 519. The Tax Court found that, aside from the tax advantages to be gained, the principal purposes for incorporation were to facilitate the raising of capital and to expedite and simplify the processes incident to sales.' It assumed, from the evidence, that the property when acquired by the corporation had a fair market value of approximately $250,000. After finding that the exchange of checks between the partnership and the corporation was a wash-out transaction, the Tax Court concluded that the January 10th, 1950, transaction did not create a bona fide debtor-creditor relationship between the corporation and the Walkers, and that the transfer was, in substance, a transfer of land solely in exchange for stock of the taxpayer and is governed by the provisions of Section 112(b) (5) of the Internal Revenue Code of 1939. From this it followed, and the Tax Court so held, that the basis to the corporation is the same as the basis to the Walker partnership prior to the exchange pursuant to Section 113(a) (8) of the Internal Revenue Code of 1939, 26 U.S.C.A. (I.R.C.1939) § 113(a) (8). From the decision of the Tax Court, entered in accordance with its opinion, the taxpayer corporation has appealed. The corporation started in business with the land acquired from the stockholders and six hundred dollars in money, or such part of that sum as may have remained after the payment of its or ganization expense. The agreement between stockholders and corporation showed a corporate indebtedness for purchase money of $241,000 which was more than 96% of the recited purchase price of the land. Its equity was narrowly margined and its working capital was practically nil. Its only asset was an area of mangrove swamp. The only source from which the corporation could expect revenues was from the sale of lands. Only a very small part of the land had been cleared and filled. It was of a kind and character that required the expenditure of substantial amounts of money in order" }, { "docid": "21469159", "title": "", "text": "a price of something more than $69,000. Purchase money mortgages were given for a substantial portion of the price. In December, 1949, the Walkers caused the taxpayer, Aqua-lane Shores, Inc., to be incorporated under the Florida law. Ten shares of stock were issued to each of the three Walkers for $320.00 per share. The Walkers conveyed the land to the corporation and executed an agreement in which it was stated that the consideration for the transfer was $250,000.00, of which $9,-000.00 was paid in cash, an unpaid amount of $49,128.88 on the mortgages was assumed, leaving a balance of $191,871.12 payable in five equal annual installments bearing interest at 4%. The land was, for the most part, mangrove swamp. It was the plan of the Walkers to develop the property as a residential subdivision. The partnership reported the transfer to the corporation as an installment sale which resulted in a long-term capital gain. The corporation borrowed money and gave mortgages as security. The father made two unsecured loans, each in the amount of $10,000, to the corporation. During the years 1950, 1951 and 1952, tax returns computed gains from the sale of lots on the basis of an overall land cost of $250,000. The Commissioner determined that the basis of the property to the corporation taxpayer was $69,291, the same as the basis of the Walkers. Deficiencies were assessed. The Tax Court, 30 T.C. 519, sustained the Commissioner. The Court sustained the Tax Court. The case of Bruce v. Knox, 180 F. Supp. 907 (D.C.D.Minn.) likewise involved facts similar to the facts involved in the instant case. Wallace T. Bruce, one of the taxpayers, received as a gift from his mother two-third interest in an undivided 37-acre tract of land known as Cedar Lake land, and later purchased the remainder for $4,500. Bruce and his wife were in the business of constructing dwellings as partners. They formed a corporation known as the Bruce Construction Company to take over this business and were its sole stockholders. The Cedar Lake land remained undeveloped until 1952. With the idea of subdividing the property," }, { "docid": "21469157", "title": "", "text": "(4) Whether the corporation inordinately or unduly postponed the payment of the notes. (5) Whether the interest was paid regularly when due; and whether the rate of interest was fixed in the instrument. (6) Whether a business purpose other than tax reduction was served by the execution of the notes. (7) Whether the parties intended to create a debtor-creditor relationship. (8) The ratio of the paid-in capital to the debt of the corporation. (9) Whether the notes were secured. (10) Whether the noteholder was also a stockholder and possibly the controlling stockholder. These factors are suggestive only and are not necessarily exclusive. No single factor is decisive. Moughon v. C. I. R., 329 F.2d 399, 401 (C.A.6). In determining whether payment by a corporation to holders of notes constitutes dividends or payments on debt for income tax purposes, each case depends for its solution upon its own peculiar facts and whether a debtor-creditor relationship exists depends upon real intentions of parties which may be established by independent evidence. Gooding Amusement Corporation v. Commissioner of Internal Revenue, 6 Cir., 236 F.2d 159. This intent is not necessarily determined by the form of the transaction, but by its substance, or by what was actually done. Bauman v. United States, 106 F.Supp. 384, 387 (D.C.Mo.). The determination of the nature of the transaction is not a subjective one based upon the intent of the parties, but -is to be ascertained from an overall evaluation of the nature of the debt which is based upon many factors. Camp Wolters Enterprises v. Commissioner of Internal Revenue, 230 F.2d 555 (C.A.5); Rowan v. United States, 219 F.2d 51, 54 (C.A.5); Sun Properties v. United States, 220 F.2d 171, 175, 176 (C.A.5). The case of Aqualane Shores, Inc. v. Commissioner of Internal Revenue, 269 F.2d 116 (C.A.5) involved facts similar to those in the case under consideration. In that case, a father and two sons, who were landscaping and grading contractors, operated as a partnership in the name of Walker Construction Company. In May, 1949, the partners acquired approximately 175 acres of land at Naples, Florida, at" }, { "docid": "6194503", "title": "", "text": "was held to be dependent upon and at the risk of the success of the venture. “[T]he property was not income producing and required expenditure of development costs to make it subject to profitable sale. The contract obligations clearly represented risk capital.” Aqualane Shores, Inc. v. Commissioner, supra, 269 F.2d at page 120. The case of Camp Wolters Enterprises, Inc. v. Commissioner, 5 Cir., 1956, 230 F.2d 555, certiorari denied 352 U.S. 826, 77 S.Ct. 39, 1 L.Ed.2d 49, relied upon in Aqualane Shores, Inc. v. Commissioner, supra, is also relevant. There, the taxpayer corporation issued on its organization promissory notes amounting to $411,080.20, payable in five to nine years in return for assignments from its 89 incorporators of claims against the United States for buildings standing on Camp Wolters. The court there held that the basis to the corporation of the Camp Wolters real estate included only the actual money expended, about $416,274, and could not include the amount of the notes due the incorporators in that the exchange was for “stock or securities” within the meaning of Section 112(b) (5) of the Internal Revenue Code of 1939. Although the time period of a note is a fact to be taken into consideration in determining whether it is a stock or security, Chief Judge Hutcheson pointed out that, notwithstanding the fact that the notes had all been redeemed within two years, they were not short-term loans nor were they for “current corporate needs” but were “participation.” 230 F.2d at page 560. Two other related cases arising out of a single factual situation are also pertinent. They are Perrault v. Commissioner, 10 Cir., 1957, 244 F.2d 408, affirming 1955, 25 T.C. 439, and Houck v. Hinds, 10 Cir., 1954, 215 F.2d 673. There, five partners in a paint manufacturing and distributing business organized a corporation to which business assets worth $582,773.54 were transferred and subscribed for $50,000 in capital stock, of which only $1,000 was then paid. Short-term notes amounting to $50,000 to become due within three months were issued to the incorporators. Ten-year interest bearing installment notes amounting to" }, { "docid": "18438892", "title": "", "text": "JONES, Circuit Judge. The Messrs. Walker, father and two sons, were landscaping and grading contractors as a partnership in the name of Walker Construction Company. In May of 1949 the partners acquired approximately 175 acres of land at Naples, Florida, at a price of something more than $69,000. Purchase money mortgages were given for a substantial portion of the price. In December of 1949 the Walkers caused the taxpayer, Aqualane Shores, Inc., to be incorporated under the laws of Florida. On January 10, 1950, the organization meeting of the incor-porators was held. Ten shares of stock were issued to each of the three Walkers for $320 per share. Simultaneously the Walkers conveyed the land, except a few lots sold by the partnership, to the corporation. An agreement was executed at the same time between the Walkers and the corporation in which it was stated that the consideration for the transfer was $250,000, of which $9,000 was cash paid, an unpaid amount of $49,128.-88 on the mortgages was assumed, leaving a balance of $191,871.12. The agreement then provided: “3. The unpaid balance of $191,-871.12 shall be paid by the Purchaser to the Sellers in five equal annual installments, the first installment becoming due January 10th, 1951. Unpaid balances of principal shall bear interest from January 10th, 1950, at the rate of 4% per annum, payable annually on the anniversary of principal installments. “4. The Purchaser will (a) make all payments of principal and interest on said five mortgages promptly when the same shall become due; (b) pay all taxes and assessments levied against the land for the year 1950 and subsequent years before the same shall become delinquent; and (c) as to the balance of the sales price — $191,871.12—, pay all principal installments, with interest, promptly when the same shall be due. And should the Purchaser in anywise fail in any of these respects for a period of 60 days, the Sellers may, at their option, declare any sums of money owing to them hereunder to be forthwith due and payable.” The land was, for the most part, mangrove swamp." }, { "docid": "6194501", "title": "", "text": "repayment out of the present assets of the corporation. The land itself was vacant. It produced no income. Consequently, it seems clear that if Bruce, Inc., was not successful in its real estate venture, there was no hope for Bruce’s realizing anything on his contract of purchase without proceeding by way of judgment against the land, taking his chances with other general creditors and being subordinated to any judgment or lien creditors. With only $1,000 in assets, it cannot be seriously contended that the expense of platting, subdividing, grading streets and selling the lots could be carried on by Bruce, Inc. It would seem that the factual situation herein presents a striking example of the contribution of risk capital to the corporation. The recent decision of Aqualane Shores, Inc. v. Commissioner, 5 Cir., 1959, 269 F.2d 116, is persuasive authority for the conclusions reached herein. There, a corporation was organized for the purpose of developing a 175-acre mangrove swamp for housing purposes by three grading contractors, a father and his two sons, who theretofore had been operating their business as partners. The incorporators transferred $1,000, together with land allegedly worth $250,000, with a mortgage thereon of $49,000, to the corporation, and received among them capital stock with a par value of $9,600 and the corporation’s promise to pay a total of $191,871.12 in five annual installments with interest. A nominal amount was paid on the first installment. However, none of the remaining installments were paid. One of the incorporators, the father, subsequently made two unsecured loans of $10,000 each to the corporation. At the commencement of its business, the corporation had as assets the land and $600, but it owed $241,000, which was about 96 per cent of the purchase price. The court held that the corporation obtained the same basis in the land for capital gain or loss purposes as it had had in the hands of its incorporators in that the purported note was determined to be a “security” within the meaning of the Internal Revenue Code of 1939, Section 112(b) (5). The payment of the corporate obligation" }, { "docid": "6194505", "title": "", "text": "$532,773.54 were also issued for the balance due for the business assets which had been transferred. The courts there held that payments made on both the short and long term notes were dividend distributions for income tax purposes in that the transfer of the partnership assets was for a stock interest in the corporation. It is significant that some of the notes issued at the organization of the corporation and maturing within only three months were considered obligations to distribute dividends. It also may be observed that there is even more of an imbalance toward indebtedness as opposed to stated capital in the financial structure here than in the cited cases. The principal cases which plaintiffs urge in support of their contention are Associated Investors, Inc. v. United States, D.Kan., 1956, Par. 9396, 57-1 U.S.T.C. 56,695; J. I. Morgan, Inc., 1958, 30 T.C. 881; Warren H. Brown, 1956, 27 T.C. 27; Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171; Leonard J. Erickson, Par. 56,256 P-H Memo.T.C. (1956). In several important factors, the factual situations in the cases cited differ from the case at bar But so far as the conclusion reached may differ from the conclusion attained here, the Court is of the opinion that the teachings of Aqualane Shores, Inc. v. Commissioner and Camp Wolters Enterprises, Inc. v. Commissioner, supra, constitute the more persuasive authority in tax cases arising from the creation of a so-called “thin corporation.” The Government contends that either Bruce’s right to payment from Bruce, Inc., was incident to his stock ownership or the obligation to pay the quarterly payments under the so-called purchase contract constituted a security within the meaning of Section 112(b) (5), 26 United States Code. In reality, Bruce received all of the stock of the corporation in consideration for a small amount of cash and the transfer of the entire tract of land to the capital of the corporation. It is not necessary to determine whether the corporate obligation to pay the quarterly payments constituted an issuance of securities by Bruce, Inc. It does seem clear that the" }, { "docid": "18438893", "title": "", "text": "then provided: “3. The unpaid balance of $191,-871.12 shall be paid by the Purchaser to the Sellers in five equal annual installments, the first installment becoming due January 10th, 1951. Unpaid balances of principal shall bear interest from January 10th, 1950, at the rate of 4% per annum, payable annually on the anniversary of principal installments. “4. The Purchaser will (a) make all payments of principal and interest on said five mortgages promptly when the same shall become due; (b) pay all taxes and assessments levied against the land for the year 1950 and subsequent years before the same shall become delinquent; and (c) as to the balance of the sales price — $191,871.12—, pay all principal installments, with interest, promptly when the same shall be due. And should the Purchaser in anywise fail in any of these respects for a period of 60 days, the Sellers may, at their option, declare any sums of money owing to them hereunder to be forthwith due and payable.” The land was, for the most part, mangrove swamp. It was the plan of the Walkers to develop the property as a residential subdivision by dredging canals and using the spoil to increase the elevation of the remaining property, thus converting the unusable swamp into desirable waterfront property. The Walkers originally contemplated doing the development work as a partnership and the work was underway before the conveyance to the corporation was made. The income tax return of the partnership reported the transfer to the corporation as an installment sale which resulted in a long-term capital gain. The corporation borrowed money and gave mortgages as security. ' Forrest Walker, the father, made two unsecured loans, each in the amount of $10,000, to the corporation. During the years 1950, 1951, and 1952, the taxpayer’s income tax returns computed gains from the sales of lots on the basis of an overall land cost of $250,000. The Commissioner of Internal Revenue determined that the basis of the property to the corporation taxpayer was $69,291, the same as the basis of the Walkers. Deficiencies resulting from the Commissioner’s determination" }, { "docid": "6194502", "title": "", "text": "been operating their business as partners. The incorporators transferred $1,000, together with land allegedly worth $250,000, with a mortgage thereon of $49,000, to the corporation, and received among them capital stock with a par value of $9,600 and the corporation’s promise to pay a total of $191,871.12 in five annual installments with interest. A nominal amount was paid on the first installment. However, none of the remaining installments were paid. One of the incorporators, the father, subsequently made two unsecured loans of $10,000 each to the corporation. At the commencement of its business, the corporation had as assets the land and $600, but it owed $241,000, which was about 96 per cent of the purchase price. The court held that the corporation obtained the same basis in the land for capital gain or loss purposes as it had had in the hands of its incorporators in that the purported note was determined to be a “security” within the meaning of the Internal Revenue Code of 1939, Section 112(b) (5). The payment of the corporate obligation was held to be dependent upon and at the risk of the success of the venture. “[T]he property was not income producing and required expenditure of development costs to make it subject to profitable sale. The contract obligations clearly represented risk capital.” Aqualane Shores, Inc. v. Commissioner, supra, 269 F.2d at page 120. The case of Camp Wolters Enterprises, Inc. v. Commissioner, 5 Cir., 1956, 230 F.2d 555, certiorari denied 352 U.S. 826, 77 S.Ct. 39, 1 L.Ed.2d 49, relied upon in Aqualane Shores, Inc. v. Commissioner, supra, is also relevant. There, the taxpayer corporation issued on its organization promissory notes amounting to $411,080.20, payable in five to nine years in return for assignments from its 89 incorporators of claims against the United States for buildings standing on Camp Wolters. The court there held that the basis to the corporation of the Camp Wolters real estate included only the actual money expended, about $416,274, and could not include the amount of the notes due the incorporators in that the exchange was for “stock or securities”" }, { "docid": "18438898", "title": "", "text": "a sale but a contribution to capital. This Court concluded that there was no evidence that the transfer of property was a contribution to capital or intended as such. In the opinion which is here under review the Tax Court noted: “We are not unmindful of the fact that some parts of the reasoning and language in Sun Properties, Inc. v. United States, supra, appear to be inconsistent with the result which we have reached here. However, it is axiomatic that each case of the type considered here must be decided on its peculiar facts. In our opinion the facts of the instant case, considered in their entirety distinguish it from the case of Sun Properties, Inc., and bring it within the ambit of the opinions of this Court and of the various Courts of Appeals which we have heretofore noted.” As this Court noted in its opinion in the Sun Properties case [220 F.2d 175], “Evidence which may tend to prove that a transaction was a contribution to capital may be of many sorts”. Cf. Rowan v. United States, 5 Cir., 1955, 219 F.2d 51. The taxpayer corporation, Aqualane Shores, Inc., after its exchange of checks with its incorporating stockholders had $600 of operating funds. Payment of what it had agreed to pay for the undeveloped land which the corporation had acquired could be made only if and when sales of the land were made and proceeds of such sales were received. The controlling consideration in determining whether the obligations of a corporation given by it as the recited consideration for the transfer of property are to be regarded as representing purchase money or as a security received in a Section 112 exchange “is an overall evaluation of the nature of the debt, degree of participation and continuing interest in the business, the extent of proprietary interest compared with the similarity of the note to a cash payment, the purpose of the advances, etc.” Camp Wolters Enterprises, Inc. v. Commissioner, 22 T.C. 737, affirmed 5 Cir., 1956, 230 F.2d 555, certiorari denied 352 U.S. 826, 77 S.Ct. 39, 1" } ]

[ { "docid": "13920082", "title": "", "text": "say that his finding was clearly erroneous or an abuse of discretion. We, therefore, affirm the trial court on this issue. United States v. Donovan, 513 F.2d 337 (6th Cir. 1975) can be distinguished from the case at bar on the facts. There the Court found that there was sufficient factual evidence from which the Government should have known the involvement of the gambling suspect. The appellants Foch and Burtel claim that the government failed to allege and prove that the Court had jurisdiction of the charge of violating the gambling laws. The appellant Esselman claims that the Court erred in denying his Motion to dis miss the second count of the indictment for want of\" jurisdiction and venue. The essence of these claims is that the second count of the indictment was defective for failure to allege venue. Rule 7(c)(1) F.R.Cr.P. does not require venue to be alleged in the indictment. It provides in part, “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * ” In United States v. Branan, 457 F.2d 1062, 1065 (6th Cir. 1972) the Court said “The necessity for proof of venue does not, however, require an allegation of venue in the indictment itself.” See also Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) cert den. 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498; United States v. Honneus, 508 F.2d 566, 570 (1st Cir. 1974) cert. den. 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). Karem and Burtel question the jurisdiction of the Court in the Eastern District of Kentucky to try them. See. 3237(a), Title 18, U.S.C. provides in part, “Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” According to the evidence, the activities of Karem and Burtel began in the Western District" } ]

[ { "docid": "23658003", "title": "", "text": "make them conductors of his business as insurers. United States v. Smaldone, No. 76-1178 (10th Cir., filed April 7, 1977) (unpublished); United States v. Votteller, 544 F.2d 1355, 1359-60 (6th Cir.); United States v. Schaefer, 510 F.2d 1307, 1311 & n.6 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470; United States v. Bohn, 508 F.2d 1145, 1149 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100; United States v. McHale, 495 F.2d 15, 18 (7th Cir.). We therefore feel that there was sufficient evidence to support the inclusion of Rodgers as a participant. While the Government’s brief on appeal does not argue that defendant Presley could be counted as one of the requisite five participants, we should consider all the evidence and it does cover Presley. The evidence adduced at trial against Presley consisted in part of items seized at his residence. It included, inter alia, a newspaper with handwritten notations of teams and points, telephone billing records, schedules for football games with written notations thereon, three sheets of paper containing names of college football teams with plus and minus numbers and a sheet listing Winning Pick Publication in Oklahoma City, miscellaneous sheets of paper with names of teams and numbers, and a publication entitled “Score, America’s Number One Rated Football Forecasting Sports Newsletter.” In addition, the jury heard tape recordings of eight phone calls on Jels-ma’s line. Six of the eight calls were identified as calls between Jelsma and Presley. The testimony concerning Presley revealed that one Choate placed a $1,000 bet with him at Junior’s Club in Oklahoma City. Although Mr. Choate won this bet and collected from Presley, he said he expected to pay “juice” if he had lost the bet. Marvin Rodgers also testified concerning his dealings with Presley. He said he accepted bets from Presley on three or four occasions in amounts never exceeding $200. FBI agent Cross was asked to give his expert description and interpretation of the eight intercepted telephone calls and the physical evidence. He was of the opinion that Presley was a" }, { "docid": "9493335", "title": "", "text": "House Hearings at 325-26. . See Senate Report at 73; 116 Cong.Rec. 603 (1970) (remarks of Sen. Allot); Sacco, supra note 7, 491 F.2d at 1000. For our purposes, of course, the question is whether Box falls within the statutory terms. If he does, the absence of a showing that he was connected with a truly large-scale gambling operation or with organized crime avails him not. Our review of the general purposes of the Act as expressed in the legislative history is intended only to provide guidance in this situation for which the application of the statutory terms is not immediately apparent. . See Thomas, supra note 3, 508 F.2d at 1205, quoting testimony of Attorney General Mitchell at House Hearings and The President’s Commission Report on The Challenge of Crime in a Free Society at 189 (1967). . 115 Cong.Rec. 5873 (1969). . The silence of the statute and the legislative history on this matter can be contrasted with § 1831(a)(2) of President Nixon’s proposed Revised Criminal Code, not accepted by Congress, under which one who received a lay off bet would be in violation of an express statutory provision. See 13 Crim.L.Rep. 3015 (1973). . See, e. g., Guzek, supra note 7; Joseph, supra note 3; Schaefer, supra note 5; Thomas, supra note 3; United States v. Bohn, 8 Cir. 1975, 508 F.2d 1145, cert. denied, 1975, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100; United States v. DeCesaro, 7 Cir. 1974, 502 F.2d 604; United States v. McHale, 7 Cir. 1974, 495 F.2d 15; Sacco, supra note 7; Schullo, supra note 5; United States v. Ciamacco, W.D.Pa. 1973, 362 F.Supp. 107, aff’d 3 Cir., 491 F.2d 751. . Of the ten cases cited in note 23, six (Guz-ek, Schaefer, Thomas, Bohn, McHale, and Schullo) fall into the category of a bookmaker exchanging lay off bets and line information with another bookmaker. In Joseph, the recipients of the bets (which, although the Court did not term them “lay off bets,” were used “as a means by which the . . . bookmakers could increase, decrease or eliminate" }, { "docid": "893464", "title": "", "text": "persons. The record shows that each defendant, through his transactions with Singer, became involved in a network of gambling activity of substantial proportions. Although defendants argue that they are independent businessmen, it is evident that the success of their individual operations was dependent upon the success of its various related components, e. g., on their ability to pool their bets with Singer (either through lay-offs or profit sharing agreements) and to share line information through him. The degree of interdependence and interrelation thus shown negates the concept of independence urged upon us. [Id. at 224— 25.] In United States v. Thomas, 508 F.2d 1200 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100 (1975), three of the defendants had made some layoff bets with the Wolk-Capra-Fishman book on a fairly regular basis and apparently also had received some layoff bets from that book. In affirming the convictions, we said: [The transcribed] conversations do indicate that Schullo [one of the defendants] and the Wolk book frequently exchanged lay off bets. From this evidence, a jury could conclude that in providing a regular market for Wolk’s lay off bets, Schullo assisted the Wolk operation in the balancing of its books on various athletic contests. As such, a jury could conclude that Schullo conducted or financed a part of the Wolk operation. [Id. at 1206.] We emphasized that the evidence disclosed “a consistent rather than an isolated pattern of conduct between the Wolk-Capra-Fishman book and each appellánt” and that “isolated and casual layoff bets and an occasional exchange of line information may not be sufficient to establish that one bookmaker is conducting or financing the business of a second bookmaker.” Id. Similarly, in United States v. Schaefer, 510 F.2d 1307 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975), the Lancaster book received line information and exchanged layoff bets with the other bookmaker-defendants. On reviewing, the evidence as a whole, we said: [W]e are satisfied that Schaefer and Christophel, along with the other appellants, were bookmakers and were systematically and continuously involved in this" }, { "docid": "23658006", "title": "", "text": "can his activities taken together make him a’ participant in the gambling business. There was testimony that Presley worked for a salary and tips and he had regular customers and tried to render good service for them. (XXI R. 1234). One of the services he performed was the placing of bets. Since this was done regularly through Morris, Jelsma, and Rodgers in the expectation of receiving a higher tip, we are forced to conclude that under United States v. Bennett, 563 F.2d 879 (8th Cir.), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54 L.Ed.2d 282, Presley had a sufficient financial interest that a jury might conclude he was a participant in the Morris-Jelsma business. This conclusion is not based exclusively on the Choate transaction. Rather it is founded on the documentary evidence which contains handwritten recordings of some of the bets which Presley placed with Jelsma and Rodgers on the intercepted tapes. The scope of Presley’s operations is also demonstrated by his comment to Jelsma in one of the intercepted calls that he “saves all the big stuff for you [Jelsma].” Exhibit 59, call number 3. The tenor of this and other conversations on the intercepted calls, combined with the physical evidence, indicates the substantial nature of Presley’s involvement with Jelsma and Marvin Rodgers. He had an established relationship with the Morris-Jelsma partnership and placed a significant number of bets with it. In this sense then his activities constituted an integral part of the business, for Congress intended “to include all those who participate in the operation of a gambling business, regardless [of] how minor their roles and whether or not they [are] labelled agents, runners, independent contractors or the like, and to exclude only customers of the business.” United States v. Joseph, 519 F.2d 1068, 1071 (5th Cir.), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312. Thus Presley could be found to be a participant. This brings us to appellant Jarvis. She argues that the evidence was clearly insufficient as to her, not showing that she performed any role in the gambling business or “conducted”" }, { "docid": "23658009", "title": "", "text": "composite tape; PI. Ex. 57). However, no proof was adduced to show that appellant Jarvis was a partner or an employee of the Morris-Jelsma operation, that she received any dividends, distributions, wages, salary, commission; bonus or tips for her activities, or that she was a bookmaker who made lay-off bets with the Morris-Jelsma operation. Thus she was not shown to be among the “high level bosses [or] street level employees” of the gambling business. See United States v. Smaldone, 485 F.2d 1333, 1339 n.3, 1351 (10th Cir.), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286. The association with the operation through the calls and the apartment was not substantial evidence of conducting or directing the business, or the like. Mere suspicion of guilt is not enough to sustain a conviction and guilt may not be inferred from mere association. Davidson v. United States, 411 F.2d 75, 77 (10th Cir.); Maestas v. United States, 311 F.2d 457, 459 (10th Cir.), cert. denied, 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767. In sum, we are satisfied that there was sufficient evidence of the elements of the offense — violation of state law, participation by five persons, remaining in substantially continuous operation for over 30 days or with gross revenue of $2,000 in one day — so that appellants were not entitled to a directed verdict or judgment of acquittal. The five could have included Morris, Jels-ma, Keef, Rodgers and Presley as participants. And while Jarvis could not be convicted as a conductor, owner or the like and could not be counted as a participant, the evidence was sufficient to sustain her conviction as an aider or abettor so that she also was not entitled to a judgment of acquittal. Thus as to all four appellants there is no bar to a retrial. Ill Aiding and abetting instruction Defendants claim that the trial court erred in giving an aiding and abetting instruction without also instructing the jury that it must first find that the substantive offense was committed before any defendant could be convicted as an aider and abettor." }, { "docid": "23658005", "title": "", "text": "bookmaker accepting wagers on football, college or pro, getting line information from Jelsma, and making lay-off wagers with Jelsma. (XXI R. 1250). The appellants argued at trial that Presley was merely a bettor whose bets were divided into two categories — his personal bets and those which, for lack of a better term, will be called his conduit bets. (XXII R. >' 1653-67). The record shows that Presley was the manager/bartender at Junior’s. He worked for a salary plus tips, and he tried to give good service to his regular customers. (XXI R. 1234). One of these services, it is suggested, was to place bets for his customers. Presley’s bets in this personal capacity cannot subject him to criminal liability under federal law. United States v. Smaldone, 485 F.2d 1333 (10th Cir.), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286. His bets in a conduit capacity, it was argued, were not sufficient to make him a conductor, financer, manager, supervisor, director or owner of an illegal gambling business. Nor, it was argued, can his activities taken together make him a’ participant in the gambling business. There was testimony that Presley worked for a salary and tips and he had regular customers and tried to render good service for them. (XXI R. 1234). One of the services he performed was the placing of bets. Since this was done regularly through Morris, Jelsma, and Rodgers in the expectation of receiving a higher tip, we are forced to conclude that under United States v. Bennett, 563 F.2d 879 (8th Cir.), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54 L.Ed.2d 282, Presley had a sufficient financial interest that a jury might conclude he was a participant in the Morris-Jelsma business. This conclusion is not based exclusively on the Choate transaction. Rather it is founded on the documentary evidence which contains handwritten recordings of some of the bets which Presley placed with Jelsma and Rodgers on the intercepted tapes. The scope of Presley’s operations is also demonstrated by his comment to Jelsma in one of the intercepted calls that he “saves" }, { "docid": "893465", "title": "", "text": "evidence, a jury could conclude that in providing a regular market for Wolk’s lay off bets, Schullo assisted the Wolk operation in the balancing of its books on various athletic contests. As such, a jury could conclude that Schullo conducted or financed a part of the Wolk operation. [Id. at 1206.] We emphasized that the evidence disclosed “a consistent rather than an isolated pattern of conduct between the Wolk-Capra-Fishman book and each appellánt” and that “isolated and casual layoff bets and an occasional exchange of line information may not be sufficient to establish that one bookmaker is conducting or financing the business of a second bookmaker.” Id. Similarly, in United States v. Schaefer, 510 F.2d 1307 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975), the Lancaster book received line information and exchanged layoff bets with the other bookmaker-defendants. On reviewing, the evidence as a whole, we said: [W]e are satisfied that Schaefer and Christophel, along with the other appellants, were bookmakers and were systematically and continuously involved in this gambling business. [Id. at 1313 (emphasis added).] In determining whether the various defendants should be considered as conducting and financing the Lancaster book within the meaning of § 1955, we said: The interdependence of the various individual components, including the sharing of line information and the exchanging of profits through layoff betting, outweighs the ‘independent businessmen’ theory urged by appellants and satisfies us that there was one ‘illegal gambling business’ here for the purposes of 18 U.S.C. § 1955. [Id. at 1312.] In United States v. Bohn, 508 F.2d 1145 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975), bookmakers who transacted business with their monitored colleague also asserted a similar independent bookmaker theory. In rejecting their claims, we noted that the wiretap transcripts revealed that defendant Bohn received line information and placed layoff bets with the monitored bookmaker. However, we overturned the conviction of appellant Sierbinski since the monitored calls disclosed no exchange of line information and no wagers of any type. We rejected the Government’s contention that because" }, { "docid": "15732367", "title": "", "text": "the day-to-day operation of a successful gambling operation, as' well as the applicable law, because such is essential to connecting or linking individual operators into a common gambling enterprise in cases involving alleged 18 U.S.C. § 1955 violations. Communication and cooperation among persons who operate gambling businesses minimizes the financial risks associated with gambling and makes gambling profitable for all concerned. See United States v. Schaefer, 510 F.2d 1307 (8th Cir. 1975), cert. denied 421 U.S. 975, 978, 95 S.Ct. 1975, 44 L.Ed.2d 466 (1975); See also United States v. Box, 530 F.2d 1258 (5th Cir. 1976). The successful bookmaker makes his profit by collecting a percentage, usually 10%, which losers must pay for the privilege of betting. The bookmaker is in reality a businessman rather than a gambler. The bookmaker utilizes a “line” or point spread on each game for which he is taking bets. Ideally, the bookmaker would like to have exactly the same amount bet on each side of the line so that he will collect 110% of the amount he is required to pay. Overbalance of bets to either side will therefore decrease the chance of the bookmaker reaping the 10% profit. The bookmaker may seek to compensate for the overbalance by “laying off” certain bets to other bookmakers. In addition, it is essential that bookmakers in a given area utilize “lines” which are consistent to prevent sophisticated bettors from placing bets with two bookmakers, on opposite sides, with little risk of loss for the bettor and in effect pitting the bookmakers against each other. The law in this Circuit is settled that the mere fact that two bookmakers occasionally exchange line information or “lay off” bets does not itself warrant a finding that the bookmakers are engaged in a common gambling business. United States v. Milton, 555 F.2d 1198 (5th Cir. 1977). Two bookmakers can be linked under 18 U.S.C. § 1955, however, if it is shown that: . the receipt of line information by one bookmaker substantially affects the other’s business or that there is a constant exchange of line information between the two." }, { "docid": "9493336", "title": "", "text": "one who received a lay off bet would be in violation of an express statutory provision. See 13 Crim.L.Rep. 3015 (1973). . See, e. g., Guzek, supra note 7; Joseph, supra note 3; Schaefer, supra note 5; Thomas, supra note 3; United States v. Bohn, 8 Cir. 1975, 508 F.2d 1145, cert. denied, 1975, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100; United States v. DeCesaro, 7 Cir. 1974, 502 F.2d 604; United States v. McHale, 7 Cir. 1974, 495 F.2d 15; Sacco, supra note 7; Schullo, supra note 5; United States v. Ciamacco, W.D.Pa. 1973, 362 F.Supp. 107, aff’d 3 Cir., 491 F.2d 751. . Of the ten cases cited in note 23, six (Guz-ek, Schaefer, Thomas, Bohn, McHale, and Schullo) fall into the category of a bookmaker exchanging lay off bets and line information with another bookmaker. In Joseph, the recipients of the bets (which, although the Court did not term them “lay off bets,” were used “as a means by which the . . . bookmakers could increase, decrease or eliminate their risk on a particular event,” 519 F.2d at 1071) were characterized as “professional gamblers” and did indeed supply line and other gambling information to the bookmakers. In Sacco, the “lay off bettor” was said to be a bookmaker who placed bets with the other bookmaker, but there was no mention of the exchange of line information. DeCesaro held that an affidavit alleging, inter alia, that several bookmakers had laid off bets with the head of a “lay-off bookmaking operation” was sufficient to support a finding of probable cause in a wiretap application. Ciamacco involved a “numbers” racket (where no line information is used), in which the central figure was clearly in the business of accepting lay off bets at special rates from other numbers bet-takers. . See United States v. Thomas, supra note 7, at 1206: Petrangelo aided the Wolk operation by providing a regular and consistent market for Wolk’s lay off betting. . . . . a jury could conclude that in providing a regular market for Wolk’s lay off bets, Schullo assisted" }, { "docid": "8903897", "title": "", "text": "a person who provides a regular and consistent market for lay-off betting is considered as aiding, conducting, and financing the illegal gambling business. See United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. Thomas, supra; United States v. Schaefer, supra; United States v. Bohn, 508 F.2d 1145 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975); United States v. Guzek, 527 F.2d 552 (8th Cir. 1975). The foregoing shows the scope of the Act with regard to conducting such business is quite broad. II. THE JURY INSTRUCTIONS Appellants contend the trial court’s basic instructions on the five or more requirement, given at each trial with only slight variations, were prejudicial in that they allowed a person to be counted who had no authority to manage, supervise, direct or conduct the gambling operation. Initially we note that appellants made no objection to these instructions and under Fed.R.Crim.P. 30 are now precluded from raising any error with respect .to them. United States v. Freeman, 514 F.2d 171,174 (8th Cir. 1975); United States v. Cacioppo, 517 F.2d 22, 23-24 (8th Cir. 1975); United States v. Phillips, 522 F.2d 388, 390-91 (8th Cir. 1975). In light of the discussion in Section I of this opinion, we believe the instructions were accurate and that a person may be counted who contributes to the gambling operation without having any control of it. Appellants Johnson and Williams claim the trial court erred while reinstructing of the jury on the five or more requirement in answer to a jury question. However, once again, appellants are precluded from raising this as error under Fed.R. Crim.P. 30. The only objection made to the reinstruction of the jury was by Wharton’s attorney who objected to the giving of any explanations to the jury other than the original instructions. No grounds were given for the objection as required by Rule 30. Appellants’ attorney, who represented all other defendants, did not join in this objection or make any objection of his own. In counsel’s discussion with the court as to what type of response" }, { "docid": "23591266", "title": "", "text": "locations noted above may indicate separate small scale gambling operations at each of these places, there was no unified gambling business. Specifically, they claim that the transmittal of gambling information and the sporadic acceptance of lay off wagers are insufficient to merge what were unconnected bookmaking operations into a § 1955 offense, and that there was not sufficient evidence to connect together the various groups of appellants who dealt separately with Santarpio into a unified business relationship. These claims cannot prevail. The exchange of line and other gambling information are necessary and useful functions in a gambling enterprise and persons who carry out such functions have been held to be engaged in “an illegal gambling business.” United States v. Joseph, 519 F.2d 1068, 1071 (5th Cir. 1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312, 44 U.S.L.W. 3471 (1976); United States v. Schaefer, supra at 1311; United States v. Ceraso, 467 F.2d 653, 656 (3d Cir. 1972). Similarly persons who make and accept lay off bets have been found to perform an indispensible task in the maintenance of an illegal gambling business. United States v. Thomas, 508 F.2d 1200, 1205 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100 (1975); United States v. Sacco, 491 F.2d 995, 1002-03 (9th Cir.1974) (en banc); see United States v. Schaefer, supra at 1312. With regard to the sufficiency of the evidence on this issue, close examination of the transcribed conversations between the various appellants and Santarpio discloses discourse dealing with the exchange of line and other gambling information and/or lay off betting. While the evidence with respect to some of these activities is stronger for certain of the appellants than for others, there is a reasonably clear indication that each of them frequently conferred with Santarpio concerning various aspects of a gambling business. Viewing the evidence as whole and in the light most favorable to the government, we are satisfied that all the appellants were systematically involved in a gambling business. See United States v. Schaefer, supra at 1312-13; United States v. Sacco, supra at 1004." }, { "docid": "23672349", "title": "", "text": "bettor in the operation of illegal gambling ‘conducts an illegal gambling business’ ”. (Emphasis added.) We also stated that the intent of Congress was to include all those who participate in the operation of a gambling business, regardless [of] how minor their roles. Id., citing United States v. McHale, 7 Cir. 1974, 495 F.2d 15, 18; Hawes, 529 F.2d at 482. We upheld the convictions of Joseph and two others like him, observing that they “helped the [main] . . bookmakers by providing them with line and other gambling information”. Id. Although evidence of lay-offs was also relied upon by Joseph, we did not say that such evidence was necessary. The cases constru-. ing § 1955 are uniform in declaring that Congress intended even for “street level employees” to be includable in the jurisdictional five. See Box, 530 F.2d at 1264; United States v. Marrifield, 5 Cir. 1975, 515 F.2d 877, 880; United States v. Tarter, 6 Cir. 1975, 522 F.2d 520, 526; United States v. Sacco, 9 Cir. 1974, 491 F.2d 995 (en banc); United States v. Becker, 2 Cir. 1972, 461 F.2d 230, 232; United States v. Jones, 9 Cir. 1974, 491 F.2d 1382, 1384. The conclusion we reach from consideration of Joseph and the other § 1955 cases is that a person who performs a function necessary in the operation of a gambling enterprise makes the person so performing, unless he is merely a customer or bettor, one of the jurisdictional five. Convictions should be upheld when based on the exchange of line information and the laying off of bets, when the evidence supports a conclusion that such activity is reasonably necessary to a gambling enterprise. See United States v. Schaefer, 8 Cir. 1975, 510 F.2d 1307, 1311-13, cert. denied, 421 U.S. 975, 978, 95 S.Ct. 1975, 1980, 44 L.Ed.2d 466, 470. Returning to the facts of this case, we know that the McCoys and Chastang were part of the same bookmaking operation. When Machefsky, a sub-agent, is counted in this enterprise, there is no doubt that there are four persons to be counted in the jurisdictional" }, { "docid": "893476", "title": "", "text": "to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein. . Five of the 16 original defendants were dismissed by the Government prior to trial. Of those remaining, Vernon Kleve and William McCahill negotiated pleas of guilty, while Frank Schullo was tried and convicted in a separate trial. Bert M. Ames, who stood trial with the five defendants now before us, was acquitted by the court prior to submitting the case to the jury, and the jury acquitted George M. Patterson and Thomas A. Sieleni. . Bookmaking is illegal under Minn.Stat. § 609.76. . We defined “line” in United States v. Thomas, 508 F.2d 1200, 1202 n. 2 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100 (1975), as follows: The “line” constitutes the “odds” or “handicaps” or “point spreads” on the wagered contests. This is a list of the teams and events with a certain number of points attributed to the nonfavored team. To win a bet on the favored team, therefore, that team must win by a score exceeding the point spread given to the nonfavored team. The “line” is subject to change' as a given event approaches and a bookmaker may alter the “line” on a particular event in order to try and even out the money wagered on each side. . In defining layoff betting in United States v. Thomas, 508 F.2d 1200, 1202 n. 2 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100 (1975), we observed as follows: To protect against losses, a bookmaker normally engages in “lay off’ betting whereby he passes on to another bookmaker the amount of bets by which his own “book” is unbalanced; thus to the extent he loses to his own customers, he wins back from the other bookmaker, or vice versa. The “lay off” bet is therefore, in effect, bookmaker’s insurance or reinsurance. . Between that conversation of December 3, and December 9, Guzek apparently turned around the account balance. The telephonic records indicate that Guzek" }, { "docid": "23658001", "title": "", "text": "influenced theirs. Appellants also argue that “the fact that he [Rodgers] may have on a few occasions made bets with the Morris-Jelsma operation is not in and of itself sufficient to reach the ‘concert of purpose’ required in a § 1955 violation.” (Brief of Appellant Morris at 55). Similarly, there was no evidence that he was active in the operation of the Morris-Jelsma operation or that he shared any interest in the success of that operation. Although the fact that Rodgers made bets with the Morris-Jelsma operation may not, without more, be sufficient to show his involvement, there was more evidence. Rodgers himself testified that some of his bets with the partnership were “business”* bets. (XX R. 911-12). These were placed either in anticipation of heavy betting on one side of a game or to help balance Rodgers’ books. Thus, the record contains evidence of lay-off betting by Rodgers with the Morris-Jelsma operation. Appellants claim that this is not enough proof; that this alone, without some showing of an interest on behalf of Rodgers in the outcome of the Morris-Jelsma operation, is not sufficient to show that he was a conductor, financer, manager, supervisor, director or owner of the business, citing United States v. Leon, 534 F.2d 667 (6th Cir.). However the present case, unlike Leon, does not rely exclusively on tape recordings with exchanges of line information and placing of bets. Instead there was also testimony that here certain bets were business bets as opposed to personal bets. Although the evidence shows that bets placed with Rodgers by “Bill” were personal in nature (XX R. 912), it is not necessary that lay-off betting be a two-way street in order to bring two bookmakers together in an illegal gambling business. See United States v. Guzek, 527 F.2d 552, 558 (8th Cir.); United States v. Plotkin, 550 F.2d 693, 695 n.1 (1st Cir.), cert. denied, 434 U.S. 820, 98 S.Ct. 61, 54 L.Ed.2d 76. Thus, without being financially interested in the business in the sense of participating directly in its profits, a bookmaker may still place lay-off bets with others which" }, { "docid": "23591296", "title": "", "text": "are, as long as a defendant is in business with the people on trial, he is in trouble.” The court alsd refused appellants’ requests for jury instructions to the effect that the government had to prove the existence of a single gambling business beyond a reasonable doubt. . Special Agent Whitcomb, Chief of the FBI Gambling Unit Laboratory headquarters, described the “layoff” process in bookmaking op- . erations as follows: “It is a method by which a bookmaker will wager similár to the way of the bettor. If he has heavy action Ón one side, it gives him an imbalanced book, should his bettors’ selection win, he would have a big pay out. If he cannot by changing the line of the odds thus attract attention tó the other side, to even his action, his wagering on both sides of the events, he can resort to a lay off. It is nothing more than for him to go and bet with another bookmaking operation, in the same way he is being bet into. [This way] he has insurance against his losses [and] he can cut down his risks.” See United States v. Schaefer, 510 F.2d 1307, 1311 n.5 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). . Certain of the appellants also contend that even if their assertedly separate gambling operations in different locations would suffice to constitute a violation of § 1955, it was improper for the trial court to allow evidence of gambling activities from each of the separate locations to be admitted against all appellants. Specifically, they claim that the gambling paraphernalia seized in November from each of the locations should have been admitted only against those persons actually involved. This claim, however, cannot prevail. Alleged violators of § 1955 need not know that the activity they are engaged in also involved numerous other participants. United States v. Brick, 502 F.2d 219, 224 (8th Cir. 1974). The fact that various of the appellants may have had separate relationships with Santarpio does not make their activity an independent business unassimilable into one" }, { "docid": "23672350", "title": "", "text": "United States v. Becker, 2 Cir. 1972, 461 F.2d 230, 232; United States v. Jones, 9 Cir. 1974, 491 F.2d 1382, 1384. The conclusion we reach from consideration of Joseph and the other § 1955 cases is that a person who performs a function necessary in the operation of a gambling enterprise makes the person so performing, unless he is merely a customer or bettor, one of the jurisdictional five. Convictions should be upheld when based on the exchange of line information and the laying off of bets, when the evidence supports a conclusion that such activity is reasonably necessary to a gambling enterprise. See United States v. Schaefer, 8 Cir. 1975, 510 F.2d 1307, 1311-13, cert. denied, 421 U.S. 975, 978, 95 S.Ct. 1975, 1980, 44 L.Ed.2d 466, 470. Returning to the facts of this case, we know that the McCoys and Chastang were part of the same bookmaking operation. When Machefsky, a sub-agent, is counted in this enterprise, there is no doubt that there are four persons to be counted in the jurisdictional requirement. See note 1. Cleo Vaughn ran an independent bookmaking operation. There was expert testimony, however, that Vaughn accepted lay-off bets from the McCoy operation. Although a bet by a bookmaker with another bookmaker need not be a lay-off, the jury could have believed that Vaughn did accept lay-offs and that such lay-offs were reasonably necessary to the McCoy business. As we said recently in Box, 530 F.2d at 1266, evidence that an “individual was conducting his own illegal gambling [business] and was regularly exchanging lay off bets with the other bookmakers\" can support a § 1955 conviction. The testimony showed that Vaughn set half-time lines (popular in Mobile) and transmitted them to the McCoy operation. This testimony weakens Vaughn’s contention that there was inadequate evidence for conviction. The jury could reasonably conclude that Vaughn was properly counted with the McCoy operation ■ and constituted the “fifth person”. Thus, the convictions of Vaughn, the McCoys, Chastang, and Machefsky comported with the jurisdictional requirements of the statute. A difficult question, however, is whether the appellant Bell" }, { "docid": "8903894", "title": "", "text": "were aware of the five person requirement and were determined not to violate it. See Allen Tr. IV at 62, 149; Bennett Tr. II at 224; Williams Tr. II at 370. Appellants contend the evidence did not show five per sons were conducting gambling and that certain jury instructions regarding the five person requirement were erroneous. In order to solve the issues on appeal, we will first examine the law on what constitutes “conducting” a gambling business. Our earlier opinions have examined the legislative history of § 1955 and concluded that the language of this section was specifically drafted so as to exclude customers or bettors. See United States v. Thomas, 508 F.2d 1200, 1205 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100 (1975); United States v. Schaefer, 510 F.2d 1307, 1311 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1975, 44 L.Ed.2d 466 (1975). Although the term “conduct” was not defined in § 1955, the legislative history shows 18 U.S.C. §§ 1511 and 1955 were enacted together as sections of the Organized Crime Control Act of 1970. Reading the two sections together provides a basis for excluding only bettors, since in enacting § 1511 Congress stated: The section applies generally to persons who participate in the ownership, management, or conduct of an illegal gambling business. The term “conducts” refers both to high level bosses and street level employees. It does not include the player in an illegal game of chance, nor the person who participates in an illegal gambling activity by placing a bet. 1970 United States Code Congressional and Administrative News at 4029. Several courts have held that anyone who participates in a gambling business other than a customer/bettor is counted as one of the five necessary persons conducting gambling. United States v. Becker, 461 F.2d 230, 232 (2d Cir. 1972), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974); United States v. Ceraso, 467 F.2d 653 (3d Cir. 1972); United States v. Joseph, 519 F.2d 1068, 1071-72 (5th Cir. 1975), cert. denied, 424 U.S. 909, 96" }, { "docid": "23658002", "title": "", "text": "the outcome of the Morris-Jelsma operation, is not sufficient to show that he was a conductor, financer, manager, supervisor, director or owner of the business, citing United States v. Leon, 534 F.2d 667 (6th Cir.). However the present case, unlike Leon, does not rely exclusively on tape recordings with exchanges of line information and placing of bets. Instead there was also testimony that here certain bets were business bets as opposed to personal bets. Although the evidence shows that bets placed with Rodgers by “Bill” were personal in nature (XX R. 912), it is not necessary that lay-off betting be a two-way street in order to bring two bookmakers together in an illegal gambling business. See United States v. Guzek, 527 F.2d 552, 558 (8th Cir.); United States v. Plotkin, 550 F.2d 693, 695 n.1 (1st Cir.), cert. denied, 434 U.S. 820, 98 S.Ct. 61, 54 L.Ed.2d 76. Thus, without being financially interested in the business in the sense of participating directly in its profits, a bookmaker may still place lay-off bets with others which make them conductors of his business as insurers. United States v. Smaldone, No. 76-1178 (10th Cir., filed April 7, 1977) (unpublished); United States v. Votteller, 544 F.2d 1355, 1359-60 (6th Cir.); United States v. Schaefer, 510 F.2d 1307, 1311 & n.6 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470; United States v. Bohn, 508 F.2d 1145, 1149 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100; United States v. McHale, 495 F.2d 15, 18 (7th Cir.). We therefore feel that there was sufficient evidence to support the inclusion of Rodgers as a participant. While the Government’s brief on appeal does not argue that defendant Presley could be counted as one of the requisite five participants, we should consider all the evidence and it does cover Presley. The evidence adduced at trial against Presley consisted in part of items seized at his residence. It included, inter alia, a newspaper with handwritten notations of teams and points, telephone billing records, schedules for football games with written notations thereon," }, { "docid": "8903896", "title": "", "text": "S.Ct. 1103, 47 L.Ed.2d 312 (1976); United States v. Leon, 534 F.2d 667, 676 (6th Cir. 1976); United States v. Sacco, 491 F.2d 995, 1003 (9th Cir. 1974). The court in Sacco, supra, stated: Each person, whatever his function, who plays an integral part in the maintenance of illegal gambling, conducts an “illegal gambling business” and is included within the scope of § 1955. The sole exception is the player or bettor. Id. at 1003. In United States v. Joseph, supra, the court found three defendants who helped a bookmaking operation by providing a line (point spread) and other gambling information as well as accepted bets from the operation which gave the operation a more favorable risk ratio could be counted toward the five person requirement. The court concluded that while the defendants . may not have been lay-off bettors, they were more than individual players or bettors and consciously aided in the conduct of the Victoria bookmaking business. Id. at 1072. Our own circuit has repeatedly recognized that where the illegal business is bookmaking a person who provides a regular and consistent market for lay-off betting is considered as aiding, conducting, and financing the illegal gambling business. See United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. Thomas, supra; United States v. Schaefer, supra; United States v. Bohn, 508 F.2d 1145 (8th Cir.), cert. denied, 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975); United States v. Guzek, 527 F.2d 552 (8th Cir. 1975). The foregoing shows the scope of the Act with regard to conducting such business is quite broad. II. THE JURY INSTRUCTIONS Appellants contend the trial court’s basic instructions on the five or more requirement, given at each trial with only slight variations, were prejudicial in that they allowed a person to be counted who had no authority to manage, supervise, direct or conduct the gambling operation. Initially we note that appellants made no objection to these instructions and under Fed.R.Crim.P. 30 are now precluded from raising any error with respect .to them. United States v. Freeman, 514 F.2d 171,174 (8th" }, { "docid": "9493330", "title": "", "text": ". For further explanations of the concepts of “line” and “point spread,” see United States v. Joseph, 5 Cir. 1975, 519 F.2d 1068, 1070 n. 2, cert. denied, 1976, - U.S. -, 96 S.Ct. 1103, 47 L.Ed.2d 312 [44 U.S.L.W. 3471, 1976]; United States v. Thomas, 8 Cir. 1975, 508 F.2d 1200, 1202 n. 2, cert. denied, 1975, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 100. See generally United States v. Pepe, 3 Cir. 1975, 512 F.2d 1129; United States v. Bobo, 4 Cir. 1973, 477 F.2d 974, cert. denied, 1975, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774. . The ever-present possibility that the individual in the adjacent booth of the restaurant is Agent Beinner, see infra, prevents this risk-minimizing enterprise from becoming tediously dull. . See United States v. Schaefer, 8 Cir. 1975, 510 F.2d 1307, 1312 n. 7, cert. denied, 1975, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470; Thomas, supra note 3, 508 F.2d at 1202 n. 2. The adjustment of line is apparently disfavored as a solution, because it may result in two local bookmakers offering a significantly different point spread on an event. This would offer local bettors an opportunity for a “middle” — two bets placed on different teams with two bookmakers which together could not lose more than 10% of one of the bets, and, if the actual point difference were in the middle, might both be won. See id.; United States v. Schullo, D.Minn.1973, 363 F.Supp. 246, 250, aff’d in Thomas, supra. Avoiding possibilities for “middles” is one reason for the constant exchange of line information among bookmakers. . Apparently, Dallas + 6 was the most common point spread on the 1976 Super Bowl. For a number of Dallas supporters, then, the closing touchdown which brought the Cowboys within four points represented more than a last futile hope. Other explanations and illustrations of layoff betting are given in the cases cited in note 23, infra. . See, e. g., United States v. Guzek, 8 Cir. 1975, 527 F.2d 552, 555 n. 5; Thomas, supra note 3, 508 F.2d" } ]

[ { "docid": "22903950", "title": "", "text": "U.S.C. § 3575 (1976), developed an analysis of the double jeopardy issues similar to the analysis we present here. See — U.S. at —, —, 101 S.Ct. at 433-437. On the question of multiple punishments, the Court recognized the limited nature of the holdings in Ex Parte Lange and Benz, as we have just observed. Moreover, DiFrancesco, in establishing that government appeals seeking increased sentences are proper, permits an alteration in punishment much greater than the alteration allowed here. First, under the statute sustained in DiFrancesco the Government by itself can file the appeal through which the sentence can be increased. In this case, had defendants not appealed their convictions, albeit convictions under the related enhancement statute, the section 111 sentences could not have been reviewed. Second, under the DiFrancesco statute, a defendant’s total sentence may be increased. In contrast, even if resentenced to the maximum allowed under section 111, Busic and LaRocca will receive a total sentence less than the sentence they faced before their initial appeal. In sum, the double jeopardy “injury” that the defendants here claim they will receive if resentenced on their section 111 convictions is substantially less than the “injury” facing a defendant resentenced under the DiFrancesco statute. Yet the Court has held that the DiFrancesco statute, 18 U.S.C. § 3575, does not violate the Double Jeopardy Clause. In the instant case, the defendants were convicted by a jury of serious offenses. In structuring the plan of sentencing, the trial judge did not impose the maximum sentence permitted by statute on the armed assault crimes committed by the defendants but chose to spread his sentence over each of the counts upon which defendants had been convicted, allocating the heavier period of imprisonment to the convictions under section 924(c)(2). Vacating all of the assault sentences as urged now by the Government in light of the Court’s reversal of the convictions under section 924(c)(2) and permitting resentencing on the convictions which are affirmed does not offend the Double Jeopardy Clause of the Constitution because another trial is not required. No additional record needs to be made. Resentencing" } ]

[ { "docid": "21730375", "title": "", "text": "tantamount to multiple punishment. Id. See also United States v. Jones, 722 F.2d 632, 638 (11th Cir.1983). And although it acknowledged that “it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it,” the majority opinion also observed that “the Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” Id., 449 U.S. at 137, 101 S.Ct. at 437. This observation tends to undermine the view that the moment at which a defendant begins serving his sentence necessarily triggers an expectation of finality for purposes of addressing double jeopardy problems. In light of DiFrancesco, several federal courts of appeals have rejected double jeopardy challenges to increased sentences in circumstances similar to those presented here. Where a defendant has successfully appealed convictions on the ground that they were lesser included offenses of other offenses for which the defendant remained convicted (or on grounds of similar sentencing error), courts since DiFrancesco have held that the Double Jeopardy Clause does not preclude increasing the sentence on the remaining offense to effectuate the sentencing judge’s original intent, even though the defendant has already begun serving the sentence. See United States v. Jefferson, supra, 714 F.2d at 707; McClain v. United States, 676 F.2d 915, 917-18 (2d Cir.), cert. denied, 439 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982); United States v. Busic, 639 F.2d 940, 946-53 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). We conclude that a double jeopardy challenge such as appellant’s must be rejected. As discussed above, DiFrancesco directs the Court’s inquiry to whether the defendant had a legitimate expectation of finality as to the severity of his sentence, in order to determine whether an increase in the sentence is essentially a multiple punishment for the same offense. The Government urges that, because Mr. Bello himself initiated the appeal, he has no expectation of finality. We do not find this dispositive. More" }, { "docid": "2641581", "title": "", "text": "Amendment of the United States Constitution provides, in part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb-” U.S. Const, amend. V. This guarantee consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). It is the last of these protections that Merritt argues would be violated if he is resentenced on the drug-related counts. Merritt argues that because he has fully served the sentences on the drug-related counts, he has a legitimate expectation of finality with respect to those sentences such that resentencing would violate the due process clause. Merritt’s argument is based on the premise that the sentences on the drug counts were separate and distinct from the sentence on the § 924(c)(1) count. As stated above, however, Merritt did not receive three separate sentences but rather one aggregate sentence, which has not been fully served. Having imported the sentence package rule from the direct appeal context into the collateral attack context, the court has precluded Merritt’s double jeopardy argument. “Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan.... Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” Pimienta-Redondo, 874 F.2d at 16 (quoting United, States v. Shue, 825 F.2d 1111, 1115 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987)). See Mixon, 926 F.Supp. at 180-81 (rejecting double jeopardy argument); Alton, 928 F.Supp. at 887-88 (same). b. Due Process Merritt also argues that resentencing would violate his due process rights. As stated by the Fourth Circuit, “due process may ... be denied when a sentence is enhanced after the defendant has served so much of his sentence that" }, { "docid": "23326586", "title": "", "text": "held that, in multicount convictions, there is no double jeopardy bar to enhancing the sentence on one or more counts that are affirmed on appeal in order to fulfill the sentencing intent of the trial judge when other counts are reversed. See United States v. Paul, 783 F.2d 84, 87 (7th Cir.1986); Kuna II, 781 F.2d at 106; Covelli, 738 F.2d at 862. Here, there is no question that the resentencing to twenty years imprisonment was within the legitimate expectations of Mr. Shue. The original sentences imposed on all four counts of which Mr. Shue was convicted were clearly interdependent; they comprised a sentencing package. When that sentencing package was “unbundled” because of a successful appeal of some, but not all, of the counts of the multicount conviction, the double jeopardy clause does not bar resentencing on the affirmed count so long as the new sentence conforms to statutory limits and effectuates the district court’s original sentencing intent. See Kuna II, 781 F.2d at 106. His legitimate expectation could be only that, if successful on appeal, he would not be given a greater sentence than that previously imposed as punishment for appealing his conviction. See Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. C. Due Process Mr. Shue also argues that the government is attempting to penalize him for exercising his right to appeal. Appellant cites Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), as condemning this sort of “prosecutorial vindictiveness.” We find, however, no indication of vindictiveness in the district court’s re-sentencing. Indeed, the appellant’s sentence has been reduced, rather than increased, on resentencing. The Supreme Court held in Pearce that the due process clause prevents a trial court judge from imposing a greater sentence on a defendant after a successful appeal of a conviction and retrial unless the judge gives as reasons “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S.Ct. at 2081. Unless such reasons are given, the trial judge must resentence according" }, { "docid": "2708241", "title": "", "text": "after vacating his CCE conviction on grounds that did not affect the conspiracy conviction, was appropriate and did not violate the Double Jeopardy Clause. IV. We turn next to Silvers’ challenge to the district court’s reimposition of sentences for convictions upon which Silvers had already served the entire sentence. We agree that this practice violated the Double Jeopardy Clause. In DiFrancesco, 449 U.S. at 133, 101 S.Ct. at 435, the Supreme Court made clear that a criminal sentence is not to be afforded the finality and conelusiveness accorded an acquittal. Accordingly, to determine a double jeopardy violation in the context of increases in sentences, the focus turns to whether the defendant had a legitimate expectation of finality in his sentence. Bello, 767 F.2d at 1070. Although an expectation of finality does not legitimately accrue by the mere commencement of the sentence, once a defendant fully serves a sentence for a particular crime, the Double Jeopardy Clause’s bar on multiple punishments prevents any attempt to increase thereafter a sentence for that crime. See Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1873) (holding that double jeopardy was violated by resentencing of defendant who had fully served one of two alternative sentences); United States v. Lundien, 769 F.2d 981, 984-85 (4th Cir.1985) (recognizing that court cannot reimpose sentence once defendant has fully served a lawful sentence for his crimes), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986). By the time of Silvers’ resentencing on his § 2255 motion, he had served approximately seven years’ imprisonment. Accordingly, he had fully served all five-year sentences for both counts of interstate trafficking and one count of conspiracy to defraud the United States. All of these sentences were imposed concurrent to each other and to Silvers’ original 35-year CCE conviction. Nonetheless, at resentencing, the district court reimposed these sentences, running two of them consecutive to a 15-year sentence for conspiracy to possess with intent to distribute cocaine so as to achieve a total sentence of 25 years. As the government concedes, reimposition of sentence on counts upon which Silvers had fully" }, { "docid": "2708236", "title": "", "text": "Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980). Based on DiFrancesco, we decline to declare a ruling which would provide defendants bright-line protection under the Double Jeopardy Clause at the point they exhaust their direct appeals. Instead, as we have previously-enunciated, the appropriate inquiry from DiFmncesco is whether at a particular point in time, the defendant has a legitimate expectation of finality in his sentence. United States v. Bello, 767 F.2d 1065, 1070 (4th Cir.1985). Even with the passage of seven years, we fail to see how Silvers can claim a legitimate expectation that the district court’s earlier vacation of his conspiracy conviction was final, when he was in the process of challenging the existence of the conviction upon which that vacation was based. The cases upon which Silvers relies disprove his own reasoning and lead us to the opposite conclusion. For instance, in United States v. Cochran, 883 F.2d 1012 (11th Cir.1989), Cochran was originally sentenced to 30 years’ imprisonment for four drug convictions. He received 15 years on each count to run concurrent to each other, with an additional 15-year statutory enhancement on each count. On collateral attack, Cochran successfully argued that the district court erred in imposing the statutory enhancement. At resentenc-ing, Cochran expected the district court to vacate the enhancement and impose a total 15-year sentence. Instead, the district court replaced Cochran’s sentence with a package of unenhanced concurrent and consecutive sentences totalling 25 years. Id. at 1014. On appeal, the Eleventh Circuit considered whether, on collateral attack, revisiting those aspects of Cochran’s sentences that were unchallenged violated the Double Jeopardy Clause. Similar to Silvers’ contention, Cochran argued that he had a legitimate expectation that he would receive concurrent 15-year sentences and that the Double Jeopardy Clause protected that expectation. The court rejected this claim for two reasons. First, it noted that the Double Jeopardy Clause protects a" }, { "docid": "7500831", "title": "", "text": "§ 924(c), the Court would have given Mixon a two level enhancement to his base offense level. Petitioner argues that the Court cannot enhance his offense level. B. Double Jeopardy Petitioner’s first argument against the proposed two level enhancement is that such enhancement would violate the Double Jeopardy Clause of the United States Constitution. The Court disagrees. Whether a defendant’s Double Jeopardy rights have been violated focuses on whether a defendant has a legitimate expectation of finality as to his original sentence. United States v. Bello, 767 F.2d 1065, 1070 (4th Cir.1985) (interpreting the analysis of the United States Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). The United States Court of Appeals for the Seventh Circuit has held that “[wjhere the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect challenged the entire sentencing plan, (citations omitted). Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” United States v. Shue, 825 F.2d 1111, 1115 (7th Cir.1987). This Court finds that a successful habeas petitioner is in a similar situation to ‘a defendant who has been partially successful in a direct appeal of his conviction and/or sentence. Petitioner would have this Court find that each conviction must be looked at separately and viewed in light of the time he received for such conviction. Therefore, Petitioner argues that he has an expectation of finality in his sentences for his drug convictions because he did not challenge those convictions and sentences in this collateral attack. The Court holds that a defendant is given one sentence that is determined by looking at the underlying conviction or convictions and the conduct related to such. The Court does not order several independent sentences, instead the Court orders one, entire “sentencing package.” Therefore, as in Shue, when Mixon challenged his sentence, he challenged the entire sentencing package and not just the gun sentences. Such a challenge worked as a waiver of any expectation of finality in his sentence. Therefore," }, { "docid": "10115225", "title": "", "text": "2255. See Binford, 108 F.3d 723, 728; Hillary, 106 F.3d at 1172. The district court originally took Harrison’s gun possession into account by sentencing him for using a gun during the drug crime, which directly prevented the court from enhancing Harrison’s drug sentence for firearm possession. Once the district court vacated the term imposed on the erroneous gun conviction, the district court could appropriately correct Harrison’s interdependent drug term by applying the firearm enhancement. See Binford, 108 F.3d 723, 728-29; Hillary, 106 F.3d at 1172-73. Harrison asserts application of the enhancement on resentencing violates double jeopardy because he has already served part of the drug term. The Double Jeopardy Clause prevents a sentencing court from increasing a defendant’s sentence after the defendant has developed a legitimate “expectation of finality in the original sentence.” United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980). When a defendant challenges one of at least two interdependent sentences, however, the defendant has effectively challenged the interwoven sentencing plan. See Binford, 108 F.3d 723, 728-30; United States v. Shue, 825 F.2d 1111, 1115 (7th Cir.1987). Because the defendant has no legitimate expectation of finality in any discrete part of an interdependent sentence after a partially successful appeal or collateral attack, there is no double jeopardy bar to enhancing an unchallenged part of an interdependent sentence to fulfill the court’s original intent. See Binford, 108 F.3d 723, 728-30; Handa, 110 F.3d 42, 44; Shue, 825 F.2d at 1115. Since Harrison has served less than 121 months of his original drug term, we need not decide whether double jeopardy bars resentencing of a § 2255 petitioner on fully served parts of an interdependent sentence. Compare Woodhouse v. United States, 109 F.3d 347, 347-48 (7th Cir.1997) (no expectation of finality in fully served drug term) with Warner v. United States, 926 F.Supp. 1387, 1393-94 (E.D.Ark.1996) (expectation of finality in fully served drug term). Last, Harrison contends the Government is seeking the gun possession enhancement to penalize him for filing a § 2255 motion, and thus, his resentencing violates his right to due" }, { "docid": "23326584", "title": "", "text": "resentenc-ing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after retrial.” 106 S.Ct. at 354. Yet, Mr. Shue argues that he has a legitimate expectation of finality in his sentence and that this bars the district court from resentencing him. He relies on United States v. Jones, 722 F.2d 632 (11th Cir.1983), which held that, where the defendant (who had not appealed his conviction or sentence) had begun to serve his sentence, he had a legitimate expectation as to the duration of the sentence that was protected by the double jeopardy clause. Id. at 638. The Jones court stated that “unless the statute explicitly provides for sentence modification, as in DiFrancesco, or the defendant knowingly engages in deception, a sentence may not be altered in a manner prejudicial to the defendant after he has started serving the sentence.” Id. at 638-39. Mr. Shue’s reliance on Jones is unpersuasive. As the Fourth Circuit noted in United States v. Bello, 767 F.2d 1065 (4th Cir.1985), the majority opinion in DiFran-cesco, “undercut^ ] the basis for any general rule that the Double Jeopardy Clause precludes a sentence increase once the defendant has commenced serving the sentence.” Id. at 1069. The Bello court pointed out that DiFrancesco “focused on whether the defendant held a legitimate ‘expectation of finality’ as to the original sentence, in order to determine whether increasing the sentence later was tantamount to multiple punishment.” Id. at 1070. Certainly, there can be no expectation of finality in a sentence originally imposed when the convicted and sentenced defendant exercises his right to appeal. Cf. Bello, 767 F.2d at 1070. Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan. See United States v. Busic, 639 F.2d 940, 947 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal. Indeed, since DiFrancesco, this court has consistently" }, { "docid": "7500830", "title": "", "text": "that the Government has no standing to move for resentencing because the Government is not a federal prisoner. 28 U.S.C. § 2255 is a collateral procedure that may be employed only by persons in the custody of the United States. Therefore, Petitioner argues that this Court does not have jurisdiction to “correct” Petitioner’s sentence by adding a two level offense enhancement. A. § 924(c) and § 2Dl.l(b)(l) The relationship between § 924(c) and § 2Dl.l(b)(l) is an “either/or” relationship at sentencing. If a defendant is convicted of “using or carrying” a firearm in furtherance of a drug crime he must receive a five year consecutive sentence, but he cannot also have his base offense level enhanced pursuant to § 2Dl.l(b)(l) because such enhancement would violate the Double Jeopardy Clause of the United States Constitution. However, a defendant who is not convicted of violation of § 924(c) may receive an enhancement of his base offense level for possession of a firearm in connection with a drug offense. In Mix-on’s action, if Mixon had been acquitted of § 924(c), the Court would have given Mixon a two level enhancement to his base offense level. Petitioner argues that the Court cannot enhance his offense level. B. Double Jeopardy Petitioner’s first argument against the proposed two level enhancement is that such enhancement would violate the Double Jeopardy Clause of the United States Constitution. The Court disagrees. Whether a defendant’s Double Jeopardy rights have been violated focuses on whether a defendant has a legitimate expectation of finality as to his original sentence. United States v. Bello, 767 F.2d 1065, 1070 (4th Cir.1985) (interpreting the analysis of the United States Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). The United States Court of Appeals for the Seventh Circuit has held that “[wjhere the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect challenged the entire sentencing plan, (citations omitted). Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” United" }, { "docid": "23060546", "title": "", "text": "resentencing after appeal. See Pennsylvania v. Goldhammer, 474 U.S. 28, 30, 106 S.Ct. 353, 354, 88 L.Ed.2d 183 (1985) (per curiam) (resentencing after appeal does not intrude upon values protected by double jeopardy clause); United States v. DiFrancesco, 449 U.S. 117, 132-39, 101 S.Ct. 426, 434-39, 66 L.Ed.2d 328 (1980). Criminal sentences do not possess the constitutional finality and conclusiveness that attach to a jury’s verdict of acquittal. Id. at 132, 101 S.Ct. at 434. Consequently, neither appellate review of sentences, id. at 136, 101 S.Ct. at 437, nor increases after appeal, id. at 137, 101 S.Ct. at 437, will ordinarily implicate double jeopardy considerations. Cf. Lockhart v. Nelson, — U.S. -, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988) (double jeopardy clause did not bar retrial of sentence enhancement proceeding after evidence was erroneously admitted). In this case, the district court did not subject defendants to double jeopardy by adjusting their sentences on Count II. A defendant “has no legitimate expectation of finality in the original sentence^] when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.” United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.1987) (footnote omitted). Accord Colunga, 812 F.2d at 198; United States v. Crawford, 769 F.2d 253, 257 (5th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986). The shoe fits comfortably here. Defendants, not having served the duration of the sentences previously imposed, attacked the bases on which those sentences rested by filing their original appeal. Their challenge necessitated review and redetermination of the full sentencing packages. We find ourselves in general agreement with the proposition that: Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan.... Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal. Shue, 825 F.2d at 1115 (citations omitted). Accord Bentley, 850 F.2d at 329; Cataldo, 832 F.2d at 875; Hagler, 709 F.2d at 579; McClain v. United States, 676 F.2d 915," }, { "docid": "21730374", "title": "", "text": "comment as to this limitation”). In the narrowest reading of DiFrancesco, which appellant urges, the case merely holds that the Double Jeopardy Clause does not preclude an increase in a sentence where the Government directly appeals that sentence pursuant to specific statutory authority. See Ralston v. Robinson, 454 U.S. 201, 224 n. 3, 102 S.Ct. 233, 247 n. 3, 70 L.Ed.2d 345 (1981) (Stevens, J., dissenting). Although the appellant has correctly stated the specific problem before the Supreme Court in DiFrancesco, the reasoning of Justice Blackmun’s opinion for the majority went beyond the specific facts of the case, undercutting the basis for any general rule that the Double Jeopardy Clause precludes a sentence increase once the defendant has commenced serving the sentence. First, the majority opinion discred ited Benz as authority for such a general rule. See DiFrancesco, supra, 449 U.S. at 138-39, 101 S.Ct. at 438. Second, it focused on whether the defendant held a legitimate “expectation of finality” as to the original sentence, in order to determine whether increasing the sentence later was tantamount to multiple punishment. Id. See also United States v. Jones, 722 F.2d 632, 638 (11th Cir.1983). And although it acknowledged that “it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it,” the majority opinion also observed that “the Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” Id., 449 U.S. at 137, 101 S.Ct. at 437. This observation tends to undermine the view that the moment at which a defendant begins serving his sentence necessarily triggers an expectation of finality for purposes of addressing double jeopardy problems. In light of DiFrancesco, several federal courts of appeals have rejected double jeopardy challenges to increased sentences in circumstances similar to those presented here. Where a defendant has successfully appealed convictions on the ground that they were lesser included offenses of other offenses for which the defendant remained convicted (or on grounds of" }, { "docid": "2708240", "title": "", "text": "Practice ¶ 31.03[5], and n. 54 (2d ed. 1995); United States v. Ward, 37 F.3d 243, 251 (C.A.6 1994) (after finding insufficient evidence to support the CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser included offense of CCE), cert. denied, 514 U.S.-, 115 S.Ct. 1388, 131 L.Ed.2d 240 (1995); United States v. Silvers, 888 F.Supp. 1289, 1306-1809 (ND [sic] Md.1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial on CCE conviction). This Court has noted the use of such practice with approval. Morris v. Mathews, 475 U.S. 237, 246-247, 106 S.Ct. 1032, 1037-1038, 89 L.Ed.2d 187 (1986). Id. at -, 116 S.Ct. at 1250 (emphasis added). While that aspect of the Court’s opinion was dictum, even Silvers’ counsel conceded at oral argument that the Supreme Court’s express ratification of the district court’s action is highly persuasive support for its constitutionality. We agree and conclude that the district court’s action of reinstating Silvers’ previously-vacated conspiracy conviction, after vacating his CCE conviction on grounds that did not affect the conspiracy conviction, was appropriate and did not violate the Double Jeopardy Clause. IV. We turn next to Silvers’ challenge to the district court’s reimposition of sentences for convictions upon which Silvers had already served the entire sentence. We agree that this practice violated the Double Jeopardy Clause. In DiFrancesco, 449 U.S. at 133, 101 S.Ct. at 435, the Supreme Court made clear that a criminal sentence is not to be afforded the finality and conelusiveness accorded an acquittal. Accordingly, to determine a double jeopardy violation in the context of increases in sentences, the focus turns to whether the defendant had a legitimate expectation of finality in his sentence. Bello, 767 F.2d at 1070. Although an expectation of finality does not legitimately accrue by the mere commencement of the sentence, once a defendant fully serves a sentence for a particular crime, the Double Jeopardy Clause’s bar on multiple punishments prevents any attempt to increase thereafter a sentence for that crime. See Ex Parte Lange," }, { "docid": "20701663", "title": "", "text": "moment in time what the exact limit of his punishment will turn out to be.” Id. at 137, 101 S.Ct. at 437. The Court cited Pearce and Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), as demonstrating that “the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.” 449 U.S. at 137, 101 S.Ct. at 438. Although DiFrancesco dealt with the government’s right to appeal sentences, the courts have applied its reasoning concerning finality to situations where the defendant has successfully appealed. In United States v. Bello, 767 F.2d 1065 (4th Cir.1985), the court applied the reasoning of DiFrancesco to find no double jeopardy violation where a more severe resentence on a remaining count followed the defendant’s successful appeal of convictions for lesser included offenses. The key to the double jeopardy question where an increased sentence is imposed following a successful appeal of either a conviction or a sentence is the defendant’s legitimate expectation of finality in the first sentence. A defendant who challenges a sentence on appeal “has no reasonable expectation of finality at the time he begins to serve his sentence.” United States v. Arrellano-Rios, 799 F.2d 520, 523-24 (9th Cir.1986) (citation omitted). The significance of the fact that the defendant is the one challenging the first sentence was highlighted in United States v. Colunga, 812 F.2d 196, 198 (5th Cir.), cert. denied, — U.S.-, 108 S.Ct. 165, 98 L.Ed.2d 120 (1987): Colunga had no reasonable expectation of finality in the original sentence imposed on either count, since he had himself sought to nullify the sentencing plan by overturning one of the two convictions. In North Carolina v. Pearce, 395 U.S. 711, 720-21, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969), the Court noted that double jeopardy does not preclude a sentencing authority from, upon a defendant's reconviction following a successful appeal, imposing “whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.” The rationale for this “well-established part of our" }, { "docid": "21730376", "title": "", "text": "similar sentencing error), courts since DiFrancesco have held that the Double Jeopardy Clause does not preclude increasing the sentence on the remaining offense to effectuate the sentencing judge’s original intent, even though the defendant has already begun serving the sentence. See United States v. Jefferson, supra, 714 F.2d at 707; McClain v. United States, 676 F.2d 915, 917-18 (2d Cir.), cert. denied, 439 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982); United States v. Busic, 639 F.2d 940, 946-53 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). We conclude that a double jeopardy challenge such as appellant’s must be rejected. As discussed above, DiFrancesco directs the Court’s inquiry to whether the defendant had a legitimate expectation of finality as to the severity of his sentence, in order to determine whether an increase in the sentence is essentially a multiple punishment for the same offense. The Government urges that, because Mr. Bello himself initiated the appeal, he has no expectation of finality. We do not find this dispositive. More important is the fact that his successful appeal of eight convictions was grounded on their being lesser included offenses of the continuing criminal enterprise offense, for which he also was convicted. We do not perceive how a defendant can have a reasonable expectation of finality in a sentence for an offense where the defendant appeals the convictions on other offenses as lesser included offenses. It would often be a windfall for the defendant to have a reduced sentence after such an appeal, in view of the fact that the defendant remains convicted of the same conduct for which the original sentencing package was imposed. We find no double jeopardy violation in the district judge’s sentence. As discussed above, due process precluded the district judge at resentencing from imposing a sentence more severe than the initial sentence. We believe that the subsequent sentence should not have subjected Mr. Bello to any greater period of incarceration than he was certain to serve under his initial sentence. The parties do not dispute that Mr. Bello would have been" }, { "docid": "3927449", "title": "", "text": "judge means immunity for the prisoner.” 330 U.S. at 166-67, 67 S.Ct. at 649. Bozza is not the last word. Both United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), and Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), conclude that courts may increase sentences without violating the Double Jeopardy Clause. DiFrancesco held that a sentence may be increased on appeal; a sentence expressly subject to review does not generate the kind of legitimate expectations of finality that the Double Jeopardy Clause protects. And Goldhammer approved the reconstruction of a sentencing package, including an increase in some of its constituent parts, to carry out the original plan after the reversal of other counts on appeal. Neither case is exactly like Bentley’s, but as we concluded in Shue, they establish, taken together, that “the double jeopardy clause does not bar resentencing ... so long as the new sentence conforms to statutory limits and effectuates the district court’s original sentencing intent.” 825 F.2d at 1115 (footnote omitted). See also United States v. Jefferson, 760 F.2d 821, 822-24 (7th Cir.1985) (the court may increase the sentence on an unchallenged count, consistent with the Double Jeopardy Clause, in order to maintain the integrity of the original package). The defendant’s “legitimate expectation could be only that, if successful [on his motion] ... he would not be given a greater sentence than that previously imposed as punishment”, Shue, 825 F.2d at 1115. Bentley received the same net sentence he had before. Since the package was not increased, none of his legitimate expectations has been disregard ed. There is no conceivable difficulty under the Due Process Clause either. Compare North Carolina v. Pearce with United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). The re-sentencing complied with both Rule and Constitution. Affirmed. . While the case was still on appeal, Bentley filed a motion to reduce sentence, which the district court granted. The court vacated that decision, recognizing that it was without jurisdiction during the appellate process. We disregard this false step." }, { "docid": "23326582", "title": "", "text": "is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an “unbundled” sentencing package. See, e.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 187, 93 L.Ed.2d 121 (1986). Because the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court’s sentencing intent as to any one of the sentences on the affirmed convictions. Thus, despite the previous panel’s failure to vacate explicitly the sentencing package and remand for resentencing, we hold that the district court had the authority to reevaluate the sentencing package in light of the changed circumstances and resentence the defendant to effectuate the original sentencing intent. Moreover, as we shall discuss in the following paragraphs, there can be no question that such resentencing does not violate the double jeopardy clause or the due process clause. See Kuna II, 781 F.2d at 106. B. Double Jeopardy The fifth amendment guarantee against double jeopardy “has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Pearce, 395 U.S. at 717, 89 S.Ct. at 2076. It is the last of these protections that is implicated when a defendant is resentenced after a successful appeal in which convictions on some of multiple counts are reversed and others are affirmed. In Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183, the Supreme Court held that, in accordance with DiFrancesco and Pearce, the double jeopardy clause did not bar resentencing on counts that were affirmed on appeal when a sentence of imprisonment on another count was vacated. “Indeed, a" }, { "docid": "23326583", "title": "", "text": "paragraphs, there can be no question that such resentencing does not violate the double jeopardy clause or the due process clause. See Kuna II, 781 F.2d at 106. B. Double Jeopardy The fifth amendment guarantee against double jeopardy “has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Pearce, 395 U.S. at 717, 89 S.Ct. at 2076. It is the last of these protections that is implicated when a defendant is resentenced after a successful appeal in which convictions on some of multiple counts are reversed and others are affirmed. In Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183, the Supreme Court held that, in accordance with DiFrancesco and Pearce, the double jeopardy clause did not bar resentencing on counts that were affirmed on appeal when a sentence of imprisonment on another count was vacated. “Indeed, a resentenc-ing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after retrial.” 106 S.Ct. at 354. Yet, Mr. Shue argues that he has a legitimate expectation of finality in his sentence and that this bars the district court from resentencing him. He relies on United States v. Jones, 722 F.2d 632 (11th Cir.1983), which held that, where the defendant (who had not appealed his conviction or sentence) had begun to serve his sentence, he had a legitimate expectation as to the duration of the sentence that was protected by the double jeopardy clause. Id. at 638. The Jones court stated that “unless the statute explicitly provides for sentence modification, as in DiFrancesco, or the defendant knowingly engages in deception, a sentence may not be altered in a manner prejudicial to the defendant after he has started serving the sentence.” Id. at 638-39. Mr. Shue’s reliance on Jones is unpersuasive. As the Fourth Circuit noted in United States v. Bello, 767 F.2d 1065 (4th Cir.1985), the" }, { "docid": "5544914", "title": "", "text": "offense and the underlying offense are interdependent, and must be considered as components of a single comprehensive sentencing plan. United States v. Davis, 112 F.3d 118, 121 (3d Cir.1997). Therefore, § 2255 gives the court jurisdiction and authority to reevaluate the entire aggregate sentence to ensure that the defendant receives the appropriate sentence on the remaining count. Accordingly the district court was correct in concluding that it has jurisdiction to resentence the defendant or to correct his sentence pursuant to § 2255. III. The defendant claims in the alternative that the district court’s consideration of the firearms in the resentencing constitutes a violation of the double jeopardy clause. The double jeopardy clause, however, only proscribes resentencing where the defendant has developed a legitimate expectation of finality in his original sentence. United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980). The defendant in the present case claims that he had an expectation of finality because he had already finished serving the original sentence on the drug charge. The defendant no longer had an expectation of finality, however, when he challenged one count of his two interrelated convictions and placed the validity of his entire sentence at issue. United States v. Rodriguez, 114 F.3d 46, 48 (5th Cir.1997). “Because the defendant has no legitimate expectation of finality in any discrete part of an interdependent sentence after a partially successful appeal or collateral attack, there is no double jeopardy bar to enhancing an unchallenged part of an interdependent sentence to fulfill the court’s original intent.” United States v. Harrison, 113 F.3d 135, 138 (8th Cir.1997) (citing United States v. Binford, 108 F.3d 723, 728-30 (7th Cir.1997)). Thus, the district court was correct in finding that by challenging his § 924(c) conviction, the defendant waived whatever expectation of finality he had in the sentence on the related drug conviction because the sentences are interdependent. By challenging the § 924(c) conviction, the defendant assumed the risk that, although his overall sentence would be reduced, the sentence on the drug count alone could be revisited and enhanced in light" }, { "docid": "23326585", "title": "", "text": "majority opinion in DiFran-cesco, “undercut^ ] the basis for any general rule that the Double Jeopardy Clause precludes a sentence increase once the defendant has commenced serving the sentence.” Id. at 1069. The Bello court pointed out that DiFrancesco “focused on whether the defendant held a legitimate ‘expectation of finality’ as to the original sentence, in order to determine whether increasing the sentence later was tantamount to multiple punishment.” Id. at 1070. Certainly, there can be no expectation of finality in a sentence originally imposed when the convicted and sentenced defendant exercises his right to appeal. Cf. Bello, 767 F.2d at 1070. Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan. See United States v. Busic, 639 F.2d 940, 947 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal. Indeed, since DiFrancesco, this court has consistently held that, in multicount convictions, there is no double jeopardy bar to enhancing the sentence on one or more counts that are affirmed on appeal in order to fulfill the sentencing intent of the trial judge when other counts are reversed. See United States v. Paul, 783 F.2d 84, 87 (7th Cir.1986); Kuna II, 781 F.2d at 106; Covelli, 738 F.2d at 862. Here, there is no question that the resentencing to twenty years imprisonment was within the legitimate expectations of Mr. Shue. The original sentences imposed on all four counts of which Mr. Shue was convicted were clearly interdependent; they comprised a sentencing package. When that sentencing package was “unbundled” because of a successful appeal of some, but not all, of the counts of the multicount conviction, the double jeopardy clause does not bar resentencing on the affirmed count so long as the new sentence conforms to statutory limits and effectuates the district court’s original sentencing intent. See Kuna II, 781 F.2d at 106. His legitimate expectation could be only that, if successful on" }, { "docid": "11684419", "title": "", "text": "to know at any specific moment in time what the exact limit of his punishment will turn out to be____ Id. at 134, 136, 137, 101 S.Ct. at 435, 437. Granting the Government the right to appeal did not violate the Double Jeopardy Clause’s prohibition against multiple punishments and successive prosecutions following an acquittal. The Supreme Court ultimately concluded that since Congress specifically provided for the Government’s appeal of the sentence, the defendant has no legitimate expectation of finality in the original sentence. Id. at 137-38, 101 S.Ct. at 437-38; see also Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985). Similarly, we conclude that Andersson has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence. Further, resentencing here does not implicate concerns regarding multiple punishments or successive prosecutions. Our examination of DiFrancesco leads us to conclude that the Double Jeopardy Clause does not provide an absolute bar to the resentencing of Andersson here. Accord United States v. Colunga, 786 F.2d 655, 658-59 (5th Cir.1986); United States v. Bello, 767 F.2d 1065, 1070 (4th Cir.1985); United States v. Jefferson, 714 F.2d 689, 706-07 (7th Cir.1983), overruled on other grounds, United States v. Markowski, 772 F.2d 358 (7th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986); McClain v. United States, 676 F.2d 915, 917-18 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982); Busic, 639 F.2d at 948-52. The vacating of both sentences is particularly appropriate when, as here, there is not one legal and one illegal sentence. Rather, it is the coexistence of the two sentences which causes the illegality. Neither of the sentences has priority. Therefore, we affirm Andersson’s and Hinck’s conviction on Count One. We remand the case to the district court with instructions: 1. In Hinck’s case, to vacate the judgment of conviction on Count Two or Three and to stay the entry of judgment and imposition of sentence on the other. The stay" } ]

[ { "docid": "5140293", "title": "", "text": "operative have voluntarily modified their rights to an extent requiring separate classification from those whose original rights remain intact. We see no merit in this contention. We think it is clear that the classes of creditors referred to in Section 725, 11 U.S.C.A. § 1225, are the same as those referred to in Section 710, 11 U.S.C. A. § 1210; and that both sections refer to the classes of creditors as they existed before any assents were obtained to the plan of adjustment under consideration. The interpretation of the act contended for the Harvard State Bank would make it necessary to obtain the assent of three-fifths of a class of creditors all of whom had already refused to give their consent. As Judge Chesnut said'of á similar contention in a similar proceeding, In re Baltimore & O. R. Co., D.C., 29 F.Supp. 608, 623, it is “obviously untenable because it would preclude all possibility of the confirmation of any plan under the Act if there was a single dissenting creditor holding a single $1,000 bond.” See also In re Wichita Falls & Southern Ry. Co., D.C., 30 F.Supp. 750. We cannot believe that Congress intended such an absurd result which would entirely defeat the purpose of Chapter XV and render the relief which it offers to the railroads illusory indeed. Furthermore the premise upon which the objecting bondholder’s argument is based is without support in the record. It is a holder of Terminal Bonds. Article III of the plan provides that the Lehigh Valley will not, without the consent of the committee of bondholders for which it provides, make any payments in respect of any Terminal Bond which will not have become subject to the plan nor permit the New Jersey' Company to make any such payment, unless a like payment on the Terminal Bonds subject to the plan shall simultaneously be made. It. further provides that the supplemental indenture to be executed by the New Jersey Company with respect to the Terminal Bonds shall provide that a default in the performance of this agreement shall constitute an event of" } ]

[ { "docid": "7288108", "title": "", "text": "the car, $4,900. Also, SAC was given leave to file an unsecured claim computed as $9,345.18, less unmatured interest, less $4,900, calculated as of August 22,1997. Knox alleges that SAC regularly files proofs of claim in bankruptcy proceedings that intentionally inflate and misrepresent the value of SAC’s collateral. Because the claims are automatically allowed pursuant to 11 U.S.C. § 502 unless the debtor objects to them, the effect of this practice, Knox alleges, is to cause injury by giving debtors a choice between paying inflated amounts or incurring legal and appraisal fees to challenge SAC’s claims. The intent of SAC’s practice, Knox alleges, is to take advantage of customers who were financially unable to protect themselves against SAC. Knox alleges that she was damaged as a result of the improper proof of claim because she was forced to incur an appraisal fee to challenge the claim. Amended Complaint, ¶ 15. Knox’s attorney was awarded an administrative claim of $50 for reimbursement of the cost of the appraisal advanced to\" contest the Knox claim, but since all funds in the Chapter 13 plan come from Knox, the $50 expense was paid by-Knox to reimburse her counsel. SAC makes the following arguments to support granting its Motion to Dismiss: (1) that the Complaint is barred by res judicata because it is Knox’s second attempt to litigate the proof of claim; (2) that the 11 U.S.C. § 105 claim should be dismissed because there is no private right of action under the provision; (3) that the claim for unjust enrichment and Illinois consumer fraud should be dismissed because both claims are preempted by the Bankruptcy Code; and lastly, (4) that Knox fails to adequately plead injury under the Illinois Consumer Fraud Act. DISCUSSION Jurisdiction The source of federal jurisdiction over bankruptcy matters is 28 U.S.C. § 1334. That provision grants district courts jurisdiction over bankruptcy cases and proceedings arising in or under Title 11 U.S.C. (the Bankruptcy Code), or related to a bankruptcy case. 28 U.S.C. § 1334. The District Judges’ bankruptcy authority may be delegated to Bankruptcy Judges under 28 U.S.C. §" }, { "docid": "2107806", "title": "", "text": "affected the power of the bankruptcy judge to hear the merits of this case. The parties seem to agree that this case could have been heard by a bankruptcy judge. They dispute whether the case got to the judge along the right path. For reasons stated below, we hold that it did, and thus we affirm the bankruptcy judge’s decision on that point and remand for further proceedings. A. Procedural Background In 1981, plaintiffs (“Gianakis”) filed petitions for relief with the bankruptcy court under Chapter 11 of the Bankruptcy Code. On March 1, 1983, the bankruptcy court confirmed the Gianakis Reorganization Plan, which included payment of about $1.6 million (including attorneys’ fees and interest) to present defendant Exchange, a former creditor. On January 2, 1985, Gianak-is sued Exchange in Cook County Circuit Court, apparently alleging that some of the money had been paid under duress, and that attorneys’ fees and interest had been improperly calculated. Gianakis served Exchange on January 9. On February 8, Exchange filed a timely “Application for Removal” in the clerk’s office for the bankruptcy court. Three months later, Gianakis moved the bankruptcy judge to remand.the case to state court. He based his motion on 28 U.S.C. § 1452(a), which Congress had passed as part of its comprehensive overhaul of the bankruptcy system, titled the “Bankruptcy Amendments and Federal Judgeship Act of 1984,” Pub.L. 98-353 (July 10, 1984) (“the 1984 Act”). That section says: (a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit’s police or regulatory power, 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. 28 U.S.C. § 1334, mentioned in § 1452(a), vests jurisdiction of bankruptcy matters in the district courts. Gianakis argued that Exchange’s Removal Application did not give the bankruptcy judge jurisdiction, since it was not filed with “the district court," }, { "docid": "8133697", "title": "", "text": "1938, c. 575, § 1, 52 Stat. 900.” Section 213 provides: “The judge may allow reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred by creditors and stockholders, and the attorneys for any of them, in connection with the submission by them of suggestions for a plan or of proposals in the form of plans, or in connection with objections by them to the confirmation of a plan, or in connection with the administration of the estate. In fixing any such allowances, the judge shall give consideration only to the services which contributed to the plan confirmed or to the refusal of confirmation of a plan, or which were beneficial in the administration of the estate, and to the proper costs and expenses incidental thereto. July 1, 1898, e. 541, § 243, as added June 22, 1938, c. 575, § 1, 52 Stat. 800.” Section 221 (4) provides: “The judge shall confirm a plan if satisfied that — all payments made or promised by the debtor or by a corporation issuing securities or acquiring property under the plan or by any other person, for services and for costs and expenses in, or in connection with, the proceeding or in connection with the plan and incident to the reorganization, have been fully disclosed to the judge and are reasonable or, if to be fixed after confirmation of the plan, will be subject to the approval of the judge; and * * *” The Woods case originally came into the United States District Court upon the filing of petitions under Section 77B. Pursuant to Section 270, sub. c (2) of the Chandler Act, the bankruptcy court made that Chapter applicable to the entire proceeding. In the instant case the District Court also applied the provisions of Chapter X, D.C., 58 F.Supp. 667, 685. Similarly in In re Mountain States Power Co., 3 Cir., 1941, 118 F.2d 405, and in In re Reynolds Investing Co., 3 Cir., 1942, 130 F.2d 60, this Court applied Chapter X in reorganization proceedings begun under Section 77B and completed under Chapter X. This" }, { "docid": "3640217", "title": "", "text": "CHESNUT, District Judge. This is the first case under the recent Act of Congress (Chandler Act) approved July 28, 1939 which added a new chapter to the Bankruptcy Act, designated Chapter 15, entitled “Railroad Adjustments”. The petitioners are the Baltimore and Ohio Railroad Company, a Maryland corporation, and three of its subsidiaries. All four petitions were filed in this court on July 28, 1939, after the Act became effective. The purpose of all the petitions is to secure approval by the court of a general plan for the modification of existing provisions of outstanding securities of the respective railroad petitioners with respect to date of maturity or rate of interest, to be made legally effective and binding on those who have not voluntarily assented to the plan as well as on those holders of securities who have so assented. The new chapter 15 of the Bankruptcy Act (§§ 700-755, 11 U.S.C.A. §§ 1200-1255) is in its general nature and purpose similar to section 77 of the same Act, 11 U.S.C.A. § 205, providing for the reorganization of railroads, but differs therefrom particularly in that it applies only • to a railroad which has, prior to the filing of the court proceeding, secured voluntary assents to the plan by creditors holding more than two-thirds of the aggregate amount of claims affected by the plan, including at least a majority of the aggregate amount of claims of each affected class; and also has secured the prior approval of the plan by the Interstate Commerce Commission to the extent required by the Act. ■ The Act also provides for a three-judge court constituted in accordance with 28 U.S.C. § 380, 28 U.S.C.A. § 380. Section 725, 11 U.S.C.A. § 1225, prescribes that the approval of the plan by the court shall be conditioned on certain specific findings of fact which include the prior approval of the plan by three-fourths of the aggregate of all affected claims, in- ' eluding three-fifths of each class; and by the Interstate Commerce Commission; that the petitioner is within the classification of railroads to which the Act is" }, { "docid": "8988979", "title": "", "text": "gave a paper on this problem which appears in the Proceedings of Fifth Seminar for Referees in Bankruptcy, pages 477-484. There is set forth below a short passage from Judge Calverley’s paper. “Section 241 of the Act provides that the judge may allow reimbursement for proper costs and expenses incurred by the petitioning creditors and reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred in a proceeding under this chapter by a referee; special master; the trustee and other officers, and attorneys for them; the attorney for the debtor; and attorney for the petitioning creditors. The compensation of referees and trustees shall not be governed by Sections 40 and 48 of the Act. This means that for your services as referee or special master in these cases, you must claim ‘reasonable compensation’ for services rendered. If you don’t, you may be in difficulty with the Administrative Office. This is not a ‘bonus’ for you, but is paid to the Administrative Office for the Salary and Expense Fund.” Thus, the Court has determined that a fee should be charged to this estate for the services of the Bankruptcy Referee/Judge. All bankruptcy cases today seem to be flooded with pleadings of all descriptions. This case, involving 1,800 elderly residents, was no exception. Over 100 complaints were filed by residents to determine the dischargeability of their claims arising out of the breach of their life-care contracts. Fortunately, most of these complaints never came to hearing since those problems were dealt with in the Plan. Throughout this proceeding, both under Chapter XI and Chapter X, the Court held 75 hearings, three of which were held on April 12, 13, and 14, 1982, respectively. While many of these hearings were accomplished in half-a-day or less, there were a number of hearings, such as the ones relating to the sale of Desert Crest and Pohai Nani properties, hearings seeking to have the proceeds of sales released, and finally the hearings on the Plan which covered several days. Reviewing the hundreds of pieces of pleadings in preparation for hearings was time-consuming. Also taking" }, { "docid": "13096209", "title": "", "text": "Vacated and remanded by published opinion. Judge DIAZ wrote the opinion, in which Chief Judge TRAXLER and Judge AGEE joined. OPINION DIAZ, Circuit Judge: We consider in this case the circumstances under which a bankruptcy court may approve nondebtor release, injunction, and exculpation provisions as part of a final plan of reorganization under Chapter 11 of the Bankruptcy Code. We hold that equitable relief provisions of the type approved in this case are permissible in certain circumstances. A bankruptcy court must, however, find facts sufficient to support its legal conclusion that a particular debtor’s circumstances entitle it to such relief. Because the bankruptcy court in this case failed to make such findings, the district court erred in affirming the bankruptcy court’s confirmation order. Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. I. Appellee National Heritage Foundation (“NHF”) is a non-profit public charity that administers and maintains Donor-Advised Funds (“DAFs”). Appellants John R. Behrmann, Nancy Behrmann, the Highbourne Foundation, Dolores F. Anderson, and the Dodie Anderson Foundation are among the more than 9000 donors that established DAFs to be administered by NHF. Following a state court judgment of over six million dollars entered against NHF in Texas, NHF filed a voluntary petition in the U.S. Bankruptcy Court for the Eastern District of Virginia, seeking to reorganize under Chapter 11 of the Bankruptcy Code. NHF notified its donors and other parties in interest, including Appellants, of the deadline for filing proofs of claim in its bankruptcy proceeding. As part of its reorganization plan, NHF proposed three categories of unsecured claims: Class 111(A), consisting of a claim by the Mancillas family, the holder of the Texas state court judgment; Class III(B), consisting of claims held by NHF’s charitable gift annuitants; and Class III(C), consisting of all other general unsecured claims. Although NHF contended that its donors were not creditors, it provided that a donor’s claim would be treated as an unsecured Class III(C) claim provided that the claim was allowed. NHF’s proposed plan of reorganization also included certain release, injunction, and exculpation provisions" }, { "docid": "15924678", "title": "", "text": "B.R. Doc. 11008, pursuant to 11 U.S.C. § 503(b)(3)-(4). The only opposition to S&R’s petition for administrative expenses came from the United States Trustee and the Asbestos Settlement Trust. The Debtors and several committee representatives filed affidavits or testified in support of S&R’s fee application. II. JURISDICTION As an initial matter, we note that this court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(d). Section § 158(d) grants .us jurisdiction to hear appeals from final orders. In a bankruptcy case, a final order is defined as an order that terminates any particular adversary proceeding. See In re Hillsborough Hold ings Corp., 116 F.3d 1391, 1393 (11th Cir.1997). The denial of S & R’s fee petition is such an order, and jurisdiction is appropriate. III. STANDARD OF REVIEW We review an award or refusal to award attorney’s fees for abuse of discretion. In re Hillsborough Holdings Corp., 127 F.3d 1398, 1401 (11th Cir.1997). A bankruptcy judge abuses his discretion if he fails to apply the correct legal standard or his factual findings are clearly erroneous. Id. See also In re Prince, 40 F.3d 356, 359 (11th Cir.1994) (holding that we review factual findings for clear error and legal conclusions de novo). IV. SUBSTANTIAL CONTRIBUTION A. The Standard Section 503 of Chapter 11 of the bankruptcy code provides that certain administrative expenses “shall be allowed” after notice and a hearing. 11 U.S.C. § 503(b) (emphasis added). Included in the list of administrative expenses awarded under § 503(b) are the expenses incurred by “a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders ... in making a substantial contribution in a case under Chapter 9 or 11 of this title....” Id. at § 503(b)(3)(D). Section 503(b)(4) provides for a related award of attorney fees. In creating these provisions, Congress did not specifically define the term “substantial contribution.” As such, a conflict has developed among the circuits regarding whether the motivation behind a creditor’s actions should disqualify him from receiving fees where a contribution has been made to the resolution of the" }, { "docid": "17704599", "title": "", "text": "PER CURIAM. This is an appeal from an order of the district court affirming the award of fees and expenses to appellant trustee by the Bankruptcy Judge in an unsuccessful Chapter X proceeding. Jurisdiction is by leave of this court as required by Section 250 of the Bankruptcy Act, 11 U.S.C. § 650. The sole issue raised is whether the Bankruptcy Judge erred in the determination of the amount of compensation allowed to the appellant. Section 241 of the Bankruptcy Act, 11 U.S.C. § 641, provides for compensation of trustees in reorganization proceedings under Chapter X as follows: § 641. Petitioning creditors; court officers; attorneys therefor The judge may allow reimbursement for proper costs and expenses incurred by the petitioning creditors and reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred in a proceeding under this chapter— * * * * * * (3) by the trustee and other officers, and the attorneys for any of them; . When a reorganization proceeding is dismissed, as was the case here, the judge is empowered to allow for such reasonable compensation as the trustee is entitled to under § 241. Bankruptcy Act § 246, 11 U.S.C. § 646. In determining the award of compensation, the Bankruptcy Judge has broad discretion and the appellate courts will not interfere with its award in the absence of a clear abuse of discretion or an erroneous application of law. See In re York International Building, Inc. v. Chaney, 527 F.2d 1061, 1068 (9th Cir. 1975); Massachusetts Mutual Life Ins. Co. v. Brock, 405 F.2d 429, 432 (5th Cir. 1969). What constitutes “reasonable compensation” depends in each case on the facts and circumstances concerning the trustee’s services and the particular reorganization proceeding. In reviewing a compensation allowance to an attorney for a trustee under § 241, the court in In re Farrington Manufacturing Company, 540 F.2d 653, 657 (4th Cir. 1976), stated: In determining what is reasonable compensation in a particular case, the Court must give consideration to the time spent, to the character of the services rendered, the results achieved, the size" }, { "docid": "18720634", "title": "", "text": "claimants. The 'Creditors’ Committee opposed the plan and requested in the alternative the liquidation of Amatex under chapter 7 of the Code, 11 U.S.C. §§ 701 et seq. (1982). On May 26, 1983, the bankruptcy judge filed an opinion and report, holding (1) that future claimants have no right to participate in any distribution of the debtor’s estate because they are not “creditors” and do not hold “claims” as defined by the Code, and (2) that therefore no need to appoint a representative for future claimants exists because their “claims” are not dischargeable. In re Am-atex, 30 B.R. 309 (Bankr.E.D.Pa.1983). After argument, the district court, by memorandum opinion and order, adopted the proposed findings and conclusions of the bankruptcy court. 37 B.R. 613 (E.D.Pa.1983). The district judge also denied Robinson’s motion to intervene. Amatex and Robinson have appealed these rulings to this Court. On July 25, 1984, after the passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984 (1984 Act), Pub.L. 98-353, 98 Stat. 333 (1984), which sought to revest bankruptcy courts with power to adjudicate “core” bankruptcy matters, Chief Judge Luongo of the District Court for the Eastern District of Pennsylvania entered an order referring all bankruptcy cases back to the bankruptcy court. As a result, Bankruptcy Judge King currently has jurisdiction over Amatex’ chapter 11 proceedings, except for this appeal. II. A. We must first address the question of our appellate jurisdiction. Because of the enactment of the 1984 Act, appellate jurisdiction in this case must derive from 28 U.S.C. § 1291 (1982). The Bankruptcy Reform Act of 1978 contained a separate provision for appellate review in bankruptcy cases. Section 1293(b) of the 1978 Act declared that a court of appeals shall have jurisdiction of an appeal from a final judgment, order, or decree of an appellate panel created under section 160 or a District court of the United States or from a final judgment, order, or decree of a bankrupt cy court of the United States if the parties to such appeal agree to a direct appeal to the court of appeals. 28 U.S.C. §" }, { "docid": "5302617", "title": "", "text": "a debt owing the bankrupt, does not compel the third person having such possession to submit the controversy to summary jurisdiction of the Bankruptcy Court. In re Italian Cook Oil Corporation, D.C., 91 F.Supp. 72. In the Sixth Circuit decision of Dannel v. Wilson, supra, involving creditor-ma-terialmen of a general contractor who enforced their liens by bringing a foreclosure action in the state court prior to the adjudication in bankruptcy of the contractor, the Court based its decision denying a stay of the state court proceedings by the Bankruptcy Court on the fact that the state foreclosure action, being prior to the adjudication in bankruptcy, gave the state court exclusive jurisdiction over the res, and Judge Simons, speaking for the Court, used strong dicta at p. 366 of the opinion in 109 F.2d 366, saying: “The contention that the clerk and master did not hold it adversely to the trustee because he claimed no personal interest in it and was a mere stake holder, is not persuasive. He retained the fund under authority of the statutes of Tennessee and the decree of the Chancery Court for such parties as would be found entitled to it, among which were parties claiming adversely to the trustee.” The Referee found as a fact that one of the North Carolina creditors, K. M. Biggs, Inc., instituted a suit in the state court of North Carolina prior to the filing of the petition in these Chapter XI proceedings seeking to have the retainage fund appropriated to the payment of its claim. If so, it seems that the North Carolina State Court acquired exclusive jurisdiction over the fund under the authority of Dannel. Although in the instant case the Gas Company does not hold the fund under any decree of a state court, it does hold the fund under the mandatory authority of the North Carolina statutes for such parties as may be entitled to it. The legally compulsive holding of the fund by the Gas Company in the instant case makes the dicta in Dannel particularly significant. The three cases of In re Weston (CA" }, { "docid": "7999110", "title": "", "text": "re Shon, D.C.Mass., 212 F. 797, In re Sabul, D.C.N.J., 36 F.Supp. 95, but see contra In re Hogsett, D.C.Cal., 1 F.R.D. 284, stand distinguished because these cases all deal with unsuccessful petitions for involuntary bankruptcy. In all of these cases attorney’s fees were not allowed because there was no seizure of the bankrupt’s property and the rule for ordinary dismissals of petitions for involuntary bankruptcy, as in General Order 34, 11 U.S.C.A. following section 53, was held to apply. The cases on corporate reorganization, In re Wilkes-Barre Hotel Co., D.C. Pa., 17 F.Supp. 875, In re Childs Co., D.C.N.Y., 52 F.Supp. 89, are similarly distinguishable. Even in these cases, where the courts have regarded the provisions of the Act as sufficiently indicating the intention of Congress, the denial of attorney’s fees has not been based upon lack of authority but upon the exercise of sound discretion, see In re Childs Co., supra. Section 2, sub. a, clause 18, the general provision of authority to tax costs, while not regarded as giving jurisdiction to tax attorney’s fees as costs, see Berry v. Root, 5 Cir., 148 F.2d 945, certiorari denied 326 U.S. 755, 66 S.Ct. 91, 90 L.Ed. 453, still cannot be interpreted as denying such jurisdiction, especially in view of Section 2, sub. b, which provides, “b. Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.” Since there is no specific Congressional legislation covering the allowance of attorney’s fees under the present facts, the only other indication of legislative intent is in the general tenor of the Act. As to this, it seems that Section 2, sub. a, Clause 15, pertinently supports the bankruptcy court’s authority to apply the doctrine of equity, providing, “(a) The courts of the United States hereinbefore defined as courts of bankruptcy are hereby created courts of bankruptcy and are hereby invested * * * with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings under this Act *" }, { "docid": "18844331", "title": "", "text": "OPINION OF THE COURT GARTH, Circuit Judge: Metro Transportation Company (“Metro”), a taxi company in Philadelphia that has filed in bankruptcy under Chapter 11 of the Bankruptcy Code (11 U.S.C. § 1101 et seq.) brought this action for declaratory judgment in the Eastern District of Pennsylvania to determine whether the liability for third party claims against Metro must be borne by the bankrupt debtor or by three insurance companies (“Insurance Companies”), Underwriters at Lloyd’s of London, Henry Ralph Rokeby-Johnson as representative (“Lloyd’s”), North Star Reinsurance Corp. (“North Star”), and Northwestern National Insurance Company (“Northwestern”) under certain automobile insurance contracts. The Official Committee of Unsecured Creditors of Metro (“Unsecured Creditors”) and the Pennsylvania Public Utility Commission (“PUC”), were granted leave to proceed as intervenor-plaintiffs in this action. Metro, the insurance companies, PUC and the Unsecured Creditors all filed motions for summary judgment. The district court granted summary judgment in favor of Metro and PUC, and held the insurance companies liable for assorted claims. I In every appeal we must first be satisfied that this court has appellate jurisdiction. Indeed, the Supreme Court has admonished the courts of appeals that this must be a threshold inquiry, particularly if jurisdiction is not apparent. Goodyear Atomic Corporation v. Miller, 486 U.S. 174, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988) (“Although neither party contests our appellate jurisdiction over this case, we must independently determine as a threshold matter that we have jurisdiction”); See also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1728, 80 L.Ed.2d 196 (1984); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Where counsel has not satisfied us that jurisdiction is present, we are obliged to raise that issue on our own initiative. Such is the case here. A. At oral argument we raised questions concerning the statutory bases for our jurisdiction, the applicability of Fed.R.Civ. Proc. 54(b) to bankruptcy proceedings and whether the order from which the present appeals were taken was final. We also questioned whether the certification by the district court pursuant to Rule 54(b) if applicable, complied" }, { "docid": "18506811", "title": "", "text": "December 1, 1990 by The Federal Courts Study Committee Implementation Act of 1990, Public Law 101-650, which now authorizes bankruptcy judges to enter binding orders in abstention matters. IT IS SO ORDERED. . CII is apparently a general partner in most, if not all, of the Limited Partnerships. Moreover, a number of the Limited Partnerships are Chapter 11 debtors before this Court. . TransOhio believes that it holds claims against Huntington for wrongful setoff as a result of assignments which were made to TransOhio under settlement arrangements with four Limited Partnerships to which TransOhio was a mortgage lender. . In addition to these three arguments, Trans-Ohio argues that this proceeding is a “related to” proceeding by virtue of Huntington’s alleged acknowledgement of relatedness in a pretrial statement prepared in connection with another pending adversary proceeding. The Court, however, believes that the statements referred to by TransOhio in no way foreclose Huntington’s ability to challenge this Court’s jurisdiction in this proceeding. Accordingly, the Court finds this reason proffered by TransOhio to be without merit. . The Court notes that TransOhio bears the burden of establishing this Court’s jurisdiction. In re Verrazano Holding Corp., 86 B.R. 755, 762 (Bankr.E.D.N.Y.1988) (citations omitted). . The Court believes it to be a significant distinction that Guimond Farms interpreted the limits of bankruptcy court jurisdiction under the 1898 Bankruptcy Act, as amended (the \"Act\"), while Xonics addressed instead jurisdiction under the Bankruptcy Reform Act of 1978, as amended (the \"Code”). The relevance of cases decided under the Act to the present jurisdictional dispute, which must be decided under provisions of the Code, is questionable. . The Xonics court also suggested, but refrained from holding, that 28 U.S.C. § 157(b)(2)(0) might also supply core jurisdiction over a dispute of this nature on the ground that such proceeding ”affect[s] ... the adjustment of the debtor-creditor or the equity security holder relationship.” Xonics at 132, n. 3. Since Trans- Ohio does not make this argument, the Court will not decide that issue. . See, In re Bowling Green Truss, Inc., 53 B.R. 391 (Bankr.W.D.Ky.1985) (dispute between secured and unsecured" }, { "docid": "15684931", "title": "", "text": "HASTIE, Circuit Judge. This dispute is about fees allowed in a proceeding under Chapter X of' the Bankruptcy Act. The record is familiar to us. On prior appeals we have (1) reversed an order approving a sale of the debtor’s assets because not included in a plan, 1949, 176 F.2d 493; (2) reversed an order denying a motion to reduce the number of trustees and affirmed an order granting interim allowances, 1951, 190 F.2d 493; (3) affirmed an order, D.C., 102 F.Supp. 859, asserting jurisdiction as to counterclaims against a creditor, 1952, 200 F.2d 327, and (4) vacated an •order for final allowances, remanding for further hearings, 1953, 206 F.2d 780. That most recent remand led to a new order allowing the same fees as before. In the present appeals parties dissatisfied with the allowances claim that certain persons, particularly the trustees and thei-r counsel, have received unreasonably large allowances while other parties whose services have benefited the «state have received unreasonably small allowances. The dissatisfied parties are the appellant Samuel Marion and the appellants Milton Unger and Edward Endelman, all attorneys, who came into the proceeding representing certain holders of debtor’s debentures; Morton Stavis, attorney for the debtor’s employee creditors; and the Securities and Exchange Commission, appearing in its statutory role as provided in Section 208 of Chapter X, 11 U.S.C.A. § 608. The Commission supports the contention of each of the above named parties that his fee should be increased, though not by as much as each claimant would like. Appellant Marion and the Commission also urge very forcefully that the fees allowed the trustees, their attorneys and certain others are too large. We consider first the size of the estate and, in broad outline, what its administration has involved. The debtor manufactured electronics equipment. A voluntary petition for reorganization under Chapter X was filed December 14, 1948. The court appointed trustees who continued the business for eight months. However, on August 1, 1949, the debt- or’s business was discontinued. Activities during the ensuing months resulted in April 1950 in the sale of all of the debtor’s assets" }, { "docid": "1630863", "title": "", "text": "DOBIE, Circuit Judge. This is an appeal from a final judgment of the District Court of the United States for the District of Maryland, dismissing plaintiff-appellants’ complaint. Judge Chesnut granted defendant-appellee’s motion to dismiss the complaint on the following grounds: (1) the District Court lacked jurisdiction of the subject matter, (2) the complaint' failed to state a valid claim or cause of action, and (3) the action, if any, had long been barred by limitations and laches. The action was instituted by seven individuals who constituted a “committee representing and acting for the Federation of Shop Craft Employees, Maintenance of Way Employees, and Signal Man Employees of the Western Maryland Railway”, on behalf of themselves and approximately 1,200 other alleged employees of the Railway Company. The complaint is in the nature of a bill in equity asking for an injunction, an accounting, and a determination of appellants’ status or relationship. The origin and history of appellants’ grievances are narrated in the prolix complaint which exceeds 17 pages in length. In this respect, the bill is contrary to both the spirit and the express requirement of Rule 8(a) of the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides that the pleading shall contain a short and plain statement of the grounds upon which the court’s jurisdiction depends and a short and plain statement of the claim showing that the pleader is entitled to relief. For purposes of brevity, therefore, we adopt as fair and complete, the concise, but fully ample and accurate, analysis of the complaint as summarized by Judge Chesnut in the opinion below (41 F.Supp. 898, 899): “It is developed in the complaint that during the war of 1917, the management of the railroads was taken over by the Government and they were returned to private ownership on March 1, 1920. Immediately prior thereto Congress passed the Transportation Act of 1920 approved February 28th. Chapter 7 of the Act, 45 U.S.C.A. §§ 131-146, created the Railroad Labor Board for the purpose of promoting amicable adjustments of disputes between the railroads and their employes with" }, { "docid": "11869471", "title": "", "text": "X trustee may under § 2, sub. a(7) sue in any federal court having personal jurisdiction of the defendants upon any cause of action belonging to the estate, even though no independent ground of federal jurisdiction exists. These cases did not decide that the reorganization court and all other federal courts have concurrent jurisdiction to exercise every bankruptcy power applicable to a Chapter X proceeding. Indeed, in Williams v. Austrian the Supreme Court, 331 U.S. at page 647, 67 S.Ct. at page 1445, noted that “certain aspects of a bankruptcy proceeding could be handled only by the court in which the [bankruptcy] adjudication was had * * Nor did these cases reach the question as to whether the powers contained in section 2, subdivision a(2) and (18) might also be exercised by the Southern District Court. We think that jurisdiction to make the ultimate disposition of these applications —whether based on Art. 6-A or upon the general equity powers of the court — was exclusively reserved to the Virginia Reorganization Court under § 221(4) of the Bankruptcy Act, 11 U.S.C.A. § 621(4), as the Securities and Exchange Commission has persuasively argued. That section provides that the reorganization judge shall confirm a plan “if satisfied that— * * * (4) all payments made or promised by the debtor * * * for services and for costs and expenses * * * in connection with the plan and incident to the reorganization, have been fully disclosed to the judge and are reasonable or, if to be fixed after confirmation of the plan, will be subject to the approval of the judge”. These allowances were payable “by the debtor”. Arising out of a lawsuit which was a potential asset of the estate and involved in the plan, they were “in connection with the plan and incident to the reorganization”. And being fixable after confirmation of the plan, they were “subject to the approval of the [reorganization] judge”. We find nothing in § 221(4) which limits its application to expenses incurred or services performed by parties to the reorganization or their attorneys. On the" }, { "docid": "3640220", "title": "", "text": "its conclusions, and shall enter a decree which shall be binding upon the petitioner and upon all creditors and security holders of the petitioner, after which the petitioner shall have power and authority to put the plan into effect and issue new securities provided for without further reference to or authority from the. Commission, or any other authority, State or Federal, except •where required by the law relating to the Reconstruction Finance Corporation. As the nature of the case requires the decree herein to he unusually elaborate and detailed, including specific findings of fact, this opinion will be limited to a statement of the court’s conclusions and the reasons therefor. Upon the filing of the petition in the District Court for Maryland the District Judge at once convened the court of three judges consisting of the Senior Circuit Judge of the Circuit, and two District Judges, and notified counsel for the petitioners that a preliminary hearing would be held in open court on July 31, 1939. As a result of the hearing then held, and in accordance with the procedure outlined in the Act, orders were then entered approving the petitions as filed, temporarily enjoining creditors affected by the plan from instituting or prosecuting adversary proceedings, and fixing a date for hearing on the merits for September 18, 1939, and requiring notice thereof to be given both by publication and direct mailing to all persons in interest whose addresses were known. A number of creditors sought intervention by petition which has been allowed in all cases. In accordance with, and after proof of the giving of notice as required, a hearing was held in open court on September 18, 19 and 20, 1939, at which time elaborate evidence was submitted on behalf of the petitioners, and all parties in interest whether represented by attorney or appearing in person and desiring to be heard on the plan, were so heard. The Baltimore and Ohio Railroad Company is one of the oldest railroads in the United States, its charter having been granted by the State of Maryland in 1827. It now furnishes" }, { "docid": "23224470", "title": "", "text": "SIBLEY, Circuit Judge. Merchants Specialty Company was in receivership on a creditor’s bill in the District Court, with G. R. Green as receiver. On September 6, 1938, a petition in involuntary bankruptcy was filed, attorneys Chas. S. Campbell, Lyle V. Corey and Thomas Y. Minniece cooperating as attorneys for petitioning creditors. Insolvency was at first denied, but before the issue was tried on September 23, 1938, the answer was amended and corporate reorganization proceedings begun, which superseded the bankruptcy and resulted in a reorganization, Green being made trustee. When fees came to be fixed the matter was referred to a master. A total of $7,010 was allowed from an estate put at $77,000. Of this $2,260 went to attorneys. Corey and Minniece (Campbell having died) were allowed .$500 for assisting in the reorganization. The fee for the three attorneys for petitioning creditors in bankruptcy was put at $160. With this last allowance they were dissatisfied and excepted to the master’s report; the district judge affirmed it, and they appeal. There was no adjudication in bankruptcy and no bankrupt estate. A fee is not to be allowed as though there was But under Section 244 of Chapter 10 of the Bankruptcy Act as amended in 1938, 11 U.S.C.A. § 644, in a reorganization proceeding begun before adjudication “the judge may allow, if not already allowed, reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred in the pending bankruptcy proceeding * * * (2) by the attorney for the petitioning creditors.” No costs and expenses are claimed, but only reasonable compensation for services. Since the assets were in court custody for creditors under the receivership, and the bankruptcy did not materialize, nothing is due for “bringing the fund into court.” A satisfactory compensation has been allowed for assistance in the reorganization. Only the service in filing the involuntary petition and some preparation to try the issue of insolvency is to be compensated, and in the spirit of Section 64, sub. b(3), of the old Bankruptcy Act, 11 U.S.C.A. § 104, sub. b(3), one reasonable fee, irrespective of the" }, { "docid": "2081903", "title": "", "text": "MEMORANDUM OF DECISION EUGENE R. WEDOPF, Bankruptcy Judge. This Chapter 7 case is before the court on the motion of a creditor, Deutsche Bank National Trust Company to confirm termination of the automatic stay affecting its collateral, the home of the debtor, Thad-dous Daniel. The motion is based on Daniel’s having a previous Chapter 13 case that was dismissed during the year before he filed the current case, triggering termination of the automatic stay under § 362(c)(3) of the Bankruptcy Code (Title 11, U.S.C.). Daniel has objected to the motion, arguing that § 362(c)(3) terminates the automatic stay only as to himself personally and whatever property he may own that is not property of his bankruptcy estate, but not as to property — such as his home — that is included in the bankruptcy estate. As discussed below, most reported decisions support Daniel’s argument, but § 362(c)(3) is better interpreted as imposing no limitation of the sort Daniel proposes. Termination of the stay under § 362(c)(3) applies to acts affecting estate property as well as other actions. Accordingly, the bank’s motion will be granted. Jurisdiction Under 28 U.S.C. § 1334(a), the federal district courts have “original and exclusive jurisdiction” of all cases under the Bankruptcy Code, but 28 U.S.C. § 157(a) allows them to refer these cases to the bankruptcy judges for their districts. The District Court for the Northern District of Illinois has made such a reference of its bankruptcy cases. N.D. Ill. Internal Operating Procedure 15(a). Pursuant to this reference, a bankruptcy judge has jurisdiction under 28 U.S.C. § 157(b)(1) to “hear and determine ... all core proceedings arising under title 11, or arising in a case under title 11.” A proceeding regarding the termination of the automatic stay is a core proceeding. 28 U.S.C. § 157(b)(2)(G). Findings of Fact The relevant facts are not in dispute. On January 27, 2006, Deutsche Bank made a loan to Thaddous Daniel secured by a mortgage on his home. On November 7, 2007, the bank filed a state court complaint to foreclose the mortgage. Three days later, Daniel filed a Chapter" }, { "docid": "13373711", "title": "", "text": "stockholders, and nonrescinding stockholders. In the plan first proposed, and afterwards changed upon objections by appellee firm and many others, the creditors were to get five-year debentures, and the stockholders preferred stock in the proposed new company; whereas in the final plan there were elections or options provided for as between cash and debentures and stock or cash for the above three classes. As said already, the application for the allowance of a fee for legal services was made by appellee, for that, while it had represented a small group of rescinding stockholders, yet in the course of such representation it had performed services which also and incidentally benefited the estate of the debtor. The nature and extent of these services have already been set out. The trial court found that appellee firm had rendered services which were “of a beneficial character to this estate,” and specified as such the two items of services we have recounted above. The applicable language of the statute which provides for allowance of compensation to attorneys and others m a reorganization proceeding under section 77B of the Bankruptcy Act is found in subsection (c) (9), 11 U.S.C.A. § 207(c) (9), and reads thus: “The judge, in addition to the jurisdiction and powers elsewhere in this section conferred upon him, * * * (9) may allow a reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositaries, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor.” Obviously, the quoted language has the effect to confer on the administrative judge a discretion which will not be disturbed by an appellate court, unless that discretion has been abused, and so it has been held. In re National Lock Co. (C.C.A.) 82 F. (2d) 600; Kargman v. Grocery Center, Inc. (C.C.A.) 83 F.(2d) 617. It is also obvious from this statute that it is difficult, if not impossible, to lay down any general" } ]

[ { "docid": "2602544", "title": "", "text": "its departments and officials acting for the-state were immune under the Eleventh Amendment; (2) only prospective injunctive relief against state officials might be obtained even if plaintiff established his case; and (3) no effectual relief could be obtained from alleged state law violations. Judge Joiner found no entitlement to relief and plaintiffs appealed. After the factual finding of no substantial similarity and the legal conclusion that there was no copyright infringement, Judge Joiner entered summary judgment for defendants. We have jurisdiction of this appeal, as the state defendants concede, under the copyright and trademark claims. Mihalek argues that summary judgment was inappropriate with respect to this issue, because, among other reasons, he presented affidavits by “average lay observers” to the effect that there was substantial similarity. He contends therefore that the affidavits presented a contested material issue precluding summary judgment. Wickham v. Knoxville Int’l Energy Exposition, Inc., 739 F.2d 1094 (6th Cir.1984) cited by plaintiffs, holds that in copyright infringement cases summary judgment is “sparingly” granted, and that “an appellate tribunal must review the evidence in the light most favorable to the party opposing the judgment.” Id. at 1097. We are mindful of these precautions in reviewing the district court’s actions in granting summary judgment to the defendants. Wickham, however, involved our affirmance of a district court’s grant of summary judgment in a copyright infringement action precisely because “[t]he district court correctly concluded that as a matter of law no substantial similarity existed between plaintiff’s and defendants’ works.” Id. at 1097. The district court in Wickham, as did Judge Joiner, found “substantial design differences.” There was therefore no proof of copying found and summary judgment was granted in Wickham, regardless of plaintiff’s contentions that defendants had access and had misappropriated his copyrighted design material. A finding of substantial differences between the copyrighted material and the alleged copy has been found to justify a judgment for the defendant in copyright infringement proceedings, Reyher v. Children’s Television Workshop, 533 F.2d 87 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976). The burden is on plaintiffs to prove" } ]

[ { "docid": "8121072", "title": "", "text": "Accordingly, RCO’s motion for partial summary judgment on its DMCA claim is DENIED and Developer Defendants’ motion for the same is GRANTED. C. Copyright infringement The parties have filed cross-motions for summary judgment on RCO’s copyright infringement claim. The Copyright Act protects the literal program code of a computer program as well as the programs controlling the internal operations of the software. Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.1997); Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521, 523 (9th Cir.1984). In addition, the Copyright Act protects audiovisual works fixed in a tangible medium of expression, such as user interfaces. 17 U.S.C. § 102(a)(6); Williams Electronics, Inc. v. Artic Int’l, Inc., 685 F.2d 870, 874 (3d Cir.1982); Midway Mfg. Co. v. Strohon, 564 F.Supp. 741, 746 (N.D.Ill.1983). “To succeed in a copyright infringement action, a plaintiff must estab lish that he or she owns the copyright creation, and that the defendant copied it.” Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir.2003). A plaintiff may prove copyright infringement either by providing direct evidence of copying, or by providing indirect evidence of copying through showing (1) access to the original work, and (2) substantial similarity between the original work and the allegedly infringing work. Kohus, 328 F.3d at 854. In either case, though, it is axiomatic that “[n]ot all ‘copying’ is actionable [...]; it is a constitutional requirement that a plaintiff bringing an infringement claim must prove ‘copying of constituent elements of the work that are original’ ” Kohus, 328 F.3d at 853 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)) (emphasis in original). RCO claims that it has both direct and indirect evidence of copying. The Court disagrees and finds that Developer Defendants are entitled to summary judgment on RCO’s copyright infringement claim for the reasons that follow. 1. Direct evidence of copying RCO alleges that it has direct evidence of copying in two respects. First, RCO argues that, by accessing the RCO-1 software on their computers, CUI employees launched the copyrighted program without" }, { "docid": "9774328", "title": "", "text": "for nontaxable costs of $11,647.60. Id. at 20. For routine taxable costs, the district court awarded $4,847.58. Id. at 23. III. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” the Supreme Court has held, “there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation omitted). A district court’s summary-judgment decision receives de novo review. See Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir.2004). The Copyright Act gives copyright owners exclusive rights to reproduce, prepare derivative works from, distribute, and publicly perform or display a copyrighted work. See 17 U.S.C. § 106. To the ends of protecting these rights, the Act allows “[t]he legal or beneficial owner of an exclusive right under a copyright ... to institute an action for any infringement of that particular right.” 17 U.S.C. § 501(b). A claim of copyright infringement requires proof of “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see also Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.1999). Because claimants rarely have direct evidence of copying, they typically try to establish an inference of copying by showing “(1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue.” Ellis, 177 F.3d at 506. “Access,” we have held, “is essentially hearing or having a reasonable opportunity to hear the plaintiff[s’] work and thus having the opportunity to copy” and “may not be inferred through mere speculation or conjecture.” Id. (quotations omitted). The “substantial similarity” analysis" }, { "docid": "18959148", "title": "", "text": "Hoffman, and common law unfair competition against all the defendants. The plaintiff seeks both injunctive relief and damages. III. “To establish copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’ ” Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)); see also ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir.1996); Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F.Supp.2d 506, 513 (S.D.N.Y.2003). The parties here do not dispute that the plaintiff has a valid copyright for his novel. Thus, the issue for summary judgment is whether there remains a genuine issue of material fact regarding the second element. To prove the second element of a copyright claim, infringing copying, the plaintiff must demonstrate both that the defendants have actually copied his work, and that such copying was illegal because a “substantial similarity” exists between the allegedly infringing work (the defendants’ play) and the protectible elements of the copyrighted work (the plaintiffs novel). See Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996,1002 (2d Cir.1995); see also Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994); Yurman Design, Inc., 275 F.Supp.2d at 514, 516-17; Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328,1336 (S.D.N.Y.1997). In the absence of proof of direct copying, the “plaintiff may establish copying circumstantially by demonstrating [ (i) ] that the person who composed the defendant[s’] work had access to the copyrighted material and [ (ii) ] that there are similarities between the two works that are probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). On the issue of probative similarity, the Court asks “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Blakeman v. The Walt Disney Co., 613 F.Supp.2d 288, 304 (E.D.N.Y.2009) (quoting Warner Bros. v. Amer. Broad. Cos., 654 F.2d 204, 208" }, { "docid": "19104891", "title": "", "text": "8, 1997. The case was dismissed against all defendants, and it is from this dismissal that Ellis appeals. II The standard of review, as both parties agree, is that stated in Federal Rule of Civil Procedure 52(a), which reads in part: Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58.... Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. “Clear error” is defined most famously in United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948): “A finding is ‘clearly errone ous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 395. To establish copyright infringement, a plaintiff must show: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” See Feist Publications, Inc. v. Rural Tel. Seru. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Hi-Tech Video Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995). Because Ellis’s ownership of a copyright to “Lay Me Out” is not disputed, the sole question is whether it was copied. Direct evidence of copying is rare, so frequently the plaintiff will attempt to establish an inference of copying by showing (1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue. See Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d 274, 276-77 (6th Cir.1988); Wickham v. Knoxville Int’l Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir.1984); see also 4 Melville B. NimmeR & David" }, { "docid": "9774329", "title": "", "text": "protecting these rights, the Act allows “[t]he legal or beneficial owner of an exclusive right under a copyright ... to institute an action for any infringement of that particular right.” 17 U.S.C. § 501(b). A claim of copyright infringement requires proof of “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see also Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.1999). Because claimants rarely have direct evidence of copying, they typically try to establish an inference of copying by showing “(1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue.” Ellis, 177 F.3d at 506. “Access,” we have held, “is essentially hearing or having a reasonable opportunity to hear the plaintiff[s’] work and thus having the opportunity to copy” and “may not be inferred through mere speculation or conjecture.” Id. (quotations omitted). The “substantial similarity” analysis first requires a filtering of the unprotectable aspects of the protected work, then asks whether an “ordinary observer” would perceive the original and the alleged copy as substantially similar. See Kohus v. Mariol, 328 F.3d 848, 855-57 (6th Cir.2003). Once a plaintiff establishes access and substantial similarity, the defendant may rebut the presumption of copying by showing independent creation of the allegedly infringing work. Ellis, 177 F.3d at 507; see also Susan Wakeen Doll Co. v. Ashton Drake Galleries, 272 F.3d 441, 450 (7th Cir.2001). Lastly, even without proof of access, a plaintiff still may prevail by showing a “striking similarity [between the works], precluding all possible conclusion but that the work was copied.” Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 325 (6th Cir.2004). In applying these principles to this case, the parties share considerable common ground. MGM does not dispute that Fog-erty and Crow own a valid copyright in “This Game We Play,” and plaintiffs concede that they failed to produce direct evidence of copying. For purposes of" }, { "docid": "19904059", "title": "", "text": "‘an inference of copying by showing (1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue.’ ” Id. (quoting Ellis, v. Diffie, 177 F.3d 503, 506 (6th Cir.1999)). Because Olmstead has no direct evidence of copying and was not able to create a triable question of fact through indirect evidence, CUI was entitled to summary judgment on Olmstead’s copyright infringement claim. The district court correctly determined that Olmstead presented no direct evidence of copyright infringement. All of the facts Olmstead listed as direct evidence of copying require a factfinder to infer that copying occurred based on circumstantial evidence. According to Olmstead, “CUI’s programmers accessed the Olmstead software multiple times per week while engaged in their development work”; CUI’s programmers met with CSE Credit Union employees who had worked as tellers and had experience with the Olmstead system; a former CSE Credit Union employee who was familiar with the Olmstead software was responsible for designing the CUI interface; and one CSE Credit Union teller stated that although she eventually received training on the CUI system, she did not receive any training on the day that the CSE Credit Union transferred from the Olmstead software to the CUI system. Even construed in the light most favorable to Olmstead for summary judgment, all of this evidence still requires a factfinder to infer that copying occurred; therefore the district court correctly determined that Olmstead did not produce any direct evidence of copying. Olmstead’s indirect evidence of copying is also not sufficient to create a fact question as to whether copying occurred. In order to prove copying through indirect evidence, a plaintiff must show “(1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue.” Kohus, 328 F.3d at 854. It is not disputed that CUI programmers were able to access the non-literal elements of Olmstead’s software — the user interface— but it is at the substantial similarity inquiry that Olmstead’s claim fails. The elements of the copyrighted work that are copied must be original, and" }, { "docid": "19228791", "title": "", "text": "Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). In this instance, the defendants concede that Coquico obtained a valid copyright. Thus, the ganglion of this appeal is the second requisite: copying of original elements. That requirement itself involves a bifurcated inquiry. First, the copyright holder must show that, as a factual matter, the putative infringer copied the protected work. Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir.2000). Second, the holder must show that the copying was so egregious as to render the allegedly infringing and infringed works substantially similar. Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir.1995). Of course, copyright law protects original expressions of ideas, not the ideas themselves. Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir.2005). This originality requirement cuts across both the actual copying and substantial similarity branches of the second-step analysis. Thus, in conducting that analysis, an inquiring court must focus upon the “constituent elements of the [plaintiffs] work that are original.” Feist, 499 U.S. at 361, 111 S.Ct. 1282. Accordingly, we turn to the binary appraisal that these principles require. 1. Actual Copying. A party may demonstrate actual copying through either direct or circumstantial evidence. Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir.2001). Coquico traversed the latter route, endeavoring to prove that the defendants enjoyed access to Común and that their later-created product (the Encantos coqui) is sufficiently similar to Común that a fair comparison of the two stuffed animals gives rise to an inference of actual copying. Rodriguez testified that he had designed the Encantos coqui by making modifications to a prototype sent to him by a Chinese manufacturer and that any similarities between his plush toy and Coquico’s were the result of his desire to replicate the coqui as it exists in nature. But the district court did not credit this testimony; and as the finder of fact, the court was not obliged to do so. In any event, the record offers ample circumstantial evidence to support the court’s" }, { "docid": "13663534", "title": "", "text": "we find that Mr. Theotokatos’ amended complaint must be dismissed on other grounds. C. Substantial Similarity Even if Mr. Theotokatos’ copyrights are valid, he fails to state a cause of action because the exhibits to his amended complaint show that he cannot meet the second requirement of a copyright infringement claim, i.e., “ ‘copying of constituent elements of the work that are original’ ” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). In the absence of direct evidence, “copying may be inferred where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work.” Atari, 672 F.2d at 614; Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 (7th Cir.1994) (quoting Atari). If the similarities between works are insufficient to prove copying, or if it is established that the accused work was independently created without copying, the plaintiff cannot prevail. Wildlife Express, 18 F.3d at 508. Where, as here, both the protected and accused works are attached to the complaint, a court may compare the works and determine as a matter of law whether they are substantially similar with respect to copyrightable material. See Cory Van Rijn, Inc. v. California Raisin Advisory Bd., 697 F.Supp. 1136, 1137 (E.D.Cal.1987); see also Wildlife Express, 18 F.3d at 506 n. 1 (courts in this circuit may make “side by side” and “ocular” comparisons to determine whether works are substantially similar). “ ‘In making such a comparison the works themselves supersede and control any contrary allegations, conclusions or descriptions of the works as contained in the pleadings.’ ” Cory Van Rijn, 697 F.Supp. at 1138 (quoting 3 Nimmer On Copyright § 12.10 (rev. ed.1985)). Motions to dismiss a copyright infringement claim may be granted where “any similarity between the two works is insubstantial.” Id. at 1138-39 (quoting same passage of Nimmer). In evaluating substantial similarity, a court applies the “ordinary observer” test, described in its classic formulation by Judge Learned Hand: whether “the ordinary observer, unless he set out to detect" }, { "docid": "12615087", "title": "", "text": "2512, 91 L.Ed.2d 202 (1986). B. Copyright Infringement Claim The Copyright Act provides protection for original works of authorship expressed in various media. 17 U.S.C. § § 101-1332. Subject to. certain exceptions not applicable here, the owner of a copyright has the exclusive rights (1) to reproduce the copyrighted work; (2) to prepare derivative works; (3) to distribute copies; (4) to perform publicly a copyrighted work; and (5) to display publicly a copyrighted work. . 17 U.S.C. § 106. A plaintiff may bring a claim against a person who infringes any of the plaintiffs exclusive rights in a copyright under § 106 by demonstrating two elements: “(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); accord Kokus v. Mariol, 328 F.3d 848, 853 (6th Cir.2003). The parties do not dispute Strombaek’s ownership of a valid copyright in “The Keeper” poem and screenplay. Thus, copying is the only issue in dispute. Since direct evidence of copying is rarely available, a plaintiff may establish “an inference of copying by showing (1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue.” Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.1999); see also Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992). “Access is essentially ‘hearing or having a reasonable opportunity to [view] the plaintiff[’s] work and thus having the opportunity to copy.’” Ellis, 177 F.3d at 506 (quoting Tree Publ’g Co. v. Warner Bros. Records, 785 F.Supp. 1272, 1274 (M.D.Tenn.1991)). In Ellis, we observed that in some cases the relationship between the degree of proof required for similarity and access may be inversely proportional: where the similarity between the two works is strong, less compelling proof of access may suffice, and vice-versa. Id. at 507. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir.2000) (stating that under the “inverse ratio ■ rule,” a lower standard of proof of" }, { "docid": "22867534", "title": "", "text": "of summary judgment de novo, construing all evidence in the light most favorable to the non-moving party. See Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir.1994). Summary judgment is only proper when there are no genuine issues of material fact. See id. We review the court’s decision to rule on the summary judgment motion without allowing the plaintiff to complete desired discovery for abuse of discretion. See Carmical v. Bell Helicopter Textron Inc., 117 F.3d 490, 493 (11th Cir.1997). II. Leigh’s Copyright Claims To establish a claim of copyright infringement, a plaintiff must prove, first, that he owns a valid copyright in a work and, second, that the defendant copied original elements of that work. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). The plaintiff can prove copying either directly or indirectly, by establishing that the defendant had access, and produced something “substantially similar,” to the copyrighted work. See Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982). Substantial similarity, in this sense, “exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Id. (internal quotation omitted). “Substantial similarity” also is important in a second, more focused way. No matter how the copying is proved, the plaintiff also must establish specifically that the allegedly infringing work is substantially similar to the plaintiffs work with regard to its protected elements. See Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1248, 1257 (11th Cir.1999) (per curiam, adopting the district court opinion in its entirety); Beal, 20 F.3d at 459 & n. 4; William F. Patry, Batman’s The Copyright Law 193 & n. 18, 196-97 (6th ed.1986). Even in the rare case of a plaintiff with direct evidence that a defendant attempted to appropriate his original expression, there is no infringement unless the defendant succeeded to a meaningful degree. See Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir.1994). For the purposes of its motion for summary judgment and" }, { "docid": "22979482", "title": "", "text": "ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137 (2d Cir.1998). A certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright. See 17 U.S.C. § 410(c). Jorgensen secured such registration for “Lover,” and the defendants do not dispute the validity of that copyright. Thus, Jorgensen has met the first element of an infringement claim. To satisfy the second element of an infringement claim — the “unauthorized copying” element — a plaintiff must show both that his work was “actually copied” and that the portion copied amounts to an “improper or unlawful appropriation.” Castle Rock, 150 F.3d at 137 (citation and internal quotation marks omitted). “Actual copying may be established by direct or indirect evidence.” Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.2001). Because direct evidence of copying is seldom available, a plaintiff may establish copying circumstantially “by demonstrating that the person who composed the defendant’s work had access to the copyrighted material,” Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1249 (11th Cir.1999); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986), and that there are similarities between the two works that are “probative of copying,” Repp, 132 F.3d at 889. A. Jorgensen’s evidence of access Access means that an alleged infringer had a “reasonable possibility” — not simply a “bare possibility” — of hearing the prior work; access cannot be based on mere “speculation or conjecture.” Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.1988); see also Herzog, 193 F.3d at 1250; Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir.1996); Ellis v. Diffie, 177 F.3d 503, 506-07 (6th Cir.1999); 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.02[A], at 13-19 to 13-20 (2002) (“[Reasonable opportunity" }, { "docid": "11664090", "title": "", "text": "§ 410(c). And the parties agree thau SCC shoulders the burden of rebutting the presumptive validity of Lexmark’s copyright. See Hi-Tech Video Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir.1995). The parties also share common ground when it comes to most of the general principles of copyright infringement applicable to this case. A plaintiff may establish a claim of copyright infringement by showing (1) ownership of a valid copyright in the computer program at issue (here, the Toner Loading Program) and (2) that the defendant copied protectable elements of the work. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir.2003). The first prong tests the originality and non-functionality of the work, see M.M. Bus. Forms Corp. v. Uarco, Inc., 472 F.2d 1137, 1139 (6th Cir.1973), both of which are presumptively established by the copyright registration. The second prong tests whether any copying occurred (a factual matter) and whether the portions of the work copied were entitled to copyright protection (a legal matter). See Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 534-35 & n. 14 (5th Cir.1994); see generally M. Nimmer & D. Nimmer, Nimmer on Copyright § 13,01[B] (2003) [hereinafter Nimmer], If no direct evidence of copying is available, a claimant may establish this element by showing that the defendant had access to the copyrighted work and that the copyrighted work and the allegedly copied work are substantially similar. Kohus, 328 F.3d at 853-54. As to the first prong, the Supreme Court has instructed that “[ojriginal ... means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity,” even if the work is not a “novel” one. Feist, 499 U.S. at 345-46 (originality requires both “independent creation plus a modicum of creativity”). And although constitutionally mandated, the threshold showing of originality is not a demanding one. Id. at 345, 111 S.Ct. 1282 (“To be sure, the" }, { "docid": "6910979", "title": "", "text": "To prove copyright infringement, a plaintiff must show first that he owned the copyright to the work that was allegedly copied, and second, that the defendant copied protected elements of the work. See Towler v. Sayles, 76 F.3d 579, 581 (4th Cir.1996) (citing Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). Where direct evidence of copying is lacking, plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author’s original work. See Towler, 76 F.3d at 581-82. Defendants contend that Bouchat did not establish access. To prove access, Bouchat was required to show that the NFL designers, the alleged infringers, had an opportunity to view Bouchat’s drawing. See id. at 582. The jury was entitled to infer that the NFL designers had access if a third party intermediary (Modell) with a close relationship to the alleged infringers (the NFL designers) had access. See id. at 583. This court, however, has rejected mere “speculative reasoning” as a basis for proving access, especially when intermediaries are involved. Id. Reasoning that amounts to nothing more than a “tortuous chain of hypothetical transmittals” is insufficient to infer access. Id. at 583 (quoting Meta-Film, Assoc., Inc. v. MCA Inc., 586 F.Supp. 1346, 1355 (C.D.Cal.1984)). Defendants, in denying actual receipt of Bouchat’s faxed drawings, claim that Bouc-hat’s proof amounts only to a “tortuous chain of hypothetical transmittals” and therefore is legally insufficient to prove access. Defendants’ argument is not persuasive. In Towler, the plaintiff relied on the theoretical possibility that agents to whom she had sent her screenplay “could have sent the work to” the alleged infringer. Id. There was no evidence that the agents had sent the work to the defendant, only the plaintiffs suggestion that such a transmittal was hypothetically possible. This, the Fourth Circuit concluded, was not adequate proof of access. See id. Bouchat offered evidence that his shield drawing was transmitted first to Moag, who shared an office with Modell" }, { "docid": "15607253", "title": "", "text": "them liable for copyright infringement, and they claim that the arguably inadmissible testimony is the only evidence of such access. Therefore, they continue, the court erred in finding them liable. This argument is fundamentally flawed. In order to establish copyright infringement, the owner of a valid copyright must prove that the defendant or the person who composed the allegedly-infringing work copied the copyrighted material. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 113 (5th Cir.1978). Because rarely is there direct evidence of unauthorized duplication, the copyright hólder frequently proves copying by showing that the defendant or the person who composed the defendant’s work had access to the copyrighted material and that the defendant’s work is substantially similar to the protected work. Id. In short, in order to prove copying indirectly, the copyright holder need not necessarily prove access on the part of the alleged infringer, so long as there is proof that the person who composed the allegedly-infrining work had access to the copyrighted material. Here, Jones Associates has clearly proven that Diebele-Ginter, the architectural firm that designed Nino Homes’ allegedly infringing plans, had access to the copyrighted work. Access merely means an opportunity to view the protected material. 3 M. Nimmer on Copyright § 13.02[A] (1988). The photocopy found in the firm’s files clearly shows that the architects had an opportunity to view Jones Associates’ design. Diebele's challenged testimony, which shows how the architects obtained that access, was not vital to the success of Jones Associates’ claim. This testimony, which we believe was properly admitted, merely helped the court to apportion relative responsibility for the unlawful conduct. Because Jones Associates has proven that the drafter of the allegedly infringing plans had access to its copyrighted work, because Lochirco admitted during the trial that he made several copies of Diebele-Ginter’s infringing plans, and because Lochirco and Nino Homes in this appeal have not challenged the court’s finding that their Riverside plans are substantially similar to the Aspen plans, we affirm the court’s conclusion that Lochirco and Nino Homes have infringed upon Jones Associates’ copyright. With respect to the amount" }, { "docid": "14176475", "title": "", "text": "competition law claims. Towler has not appealed these rulings. At the close of Towler’s evidence in the trial of the copyright infringement claim, the district court determined that the evidence was insufficient to show access and substantial similarity, and it granted the defendants’ motion for judgment as a matter of law. Towler appealed, assigning error to the court’s ruling with respect to both access and similarity. I Judgment as a matter of law is appropriate when “a party has been fully heard ... and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party.” Fed.R.Civ.P. 50(a)(1). On appeal, we evaluate the sufficiency of the evidence de novo, while viewing the facts and drawing all reasonable inferences in favor of the nonmoving party. Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 660-61 (4th Cir.1993). To prove copyright infringement, a plaintiff must show first that she owned the copyright to the work that was allegedly copied, and second, that the defendant copied protected elements of that work. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1295, 113 L.Ed.2d 358 (1991). Here, it is undisputed that Towler possesses a valid copyright to “Crossed Wires.” At issue is whether Towler has presented sufficient evidence to satisfy the second prong of the test — proof that Sayles copied her work. As is often the case, direct evidence of copying is lacking, making it necessary to look to circumstantial evidence. Accordingly, Towler can raise a presumption of copying by showing both that Sayles had access to “Crossed Wires” and that the two screenplays in question are substantially similar. Dawson v. Hinshaw Music Inc., 905 F.2d 731, 732 (4th Cir.1990). To prove access, Towler must show that Sayles had an opportunity to view or to copy her work. 3 Nimmer on Copyright § 13.02[A], at 13-16 to 13-18 (1995). A mere possibility that such an opportunity could have arisen will not suffice. Rather, it must be reasonably possible that the paths of the infringer and the infringed work crossed. Moore v. Columbia" }, { "docid": "23610789", "title": "", "text": "genuine dispute is “one that could reasonably be resolved in favor of either party.” See Ellison, 357 F.3d at 1075. III To establish copyright infringement, a plaintiff must prove two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The district court granted summary judgment for Defendants because it concluded that there was no genuine issue of material fact as to the second element, Defendants’ copying of original elements of C30020. “Because direct evidence of copying is not available in most cases,” a plaintiff can establish copying by showing (1) that the defendant had access to the plaintiffs work and (2) that the two works are substantially similar. Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996). L.A. Printex offered no direct evidence that Defendants copied C30020. To survive summary judgment, it had to show a genuine issue of material fact as to both access and substantial similarity. L.A. Printex contends that the district court erred in holding that there was no genuine issue as to either access or substantial similarity. We agree. A “Proof of access requires ‘an opportunity to view or to copy plaintiffs work.’ ” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir.2000) (quoting Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir.1977)). “To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v. MCA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir.2009). Absent direct evidence of access, a plaintiff can prove access using circumstantial evidence of either (1) a “chain of events” linking the plaintiffs work and the defendant’s access, or (2) “widespread dissemination” of the plaintiffs work. Three Boys Music, 212 F.3d at 482. L.A. Printex seeks to prove access by showing that C30020 was widely disseminated. The district court held that there was" }, { "docid": "19104892", "title": "", "text": "is left with the definite and firm conviction that a mistake has been committed.” Id. at 395. To establish copyright infringement, a plaintiff must show: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” See Feist Publications, Inc. v. Rural Tel. Seru. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Hi-Tech Video Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995). Because Ellis’s ownership of a copyright to “Lay Me Out” is not disputed, the sole question is whether it was copied. Direct evidence of copying is rare, so frequently the plaintiff will attempt to establish an inference of copying by showing (1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue. See Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d 274, 276-77 (6th Cir.1988); Wickham v. Knoxville Int’l Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir.1984); see also 4 Melville B. NimmeR & David Nimmer, Nimmer ON Copyright, § 13.02[B] (revised 1998). The district court first analyzed whether the works were substantially similar, using the “ordinary observer” test, which is the traditional standard of copyright infringement. See Black v. Gosdin, 740 F.Supp. 1288, 1292 (M.D.Tenn.1990); Flag Fables, Inc. v. Jean Ann’s Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1172 (D.Mass.1989). He found that the choruses were substantially similar. They contain a similar idea, and share some phraseology, rhythms, chord progressions, and “melodic contours.” He found other aspects of the songs, including the structures, lyrics, and melodies, to be distinct from one another. See J.A. at 40 (D. Ct. Op. at 20). Neither party contests the factual finding of substantial similarity on appeal. The district court also found, however, that Ellis did not meet his burden of proving that the defendant songwriters had access to a recording of “Lay Me Out.” Access is essentially “hearing or having a reasonable opportunity to hear the plaintifffs] work and thus having the opportunity to copy.” Tree Publ’g Co. v. Warner Bros. Records," }, { "docid": "14516386", "title": "", "text": "similar.” Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1247 (11th Cir.1999) (per curiam) (“well-reasoned” district court opinion affirmed and annexed to Eleventh Circuit ruling); accord Beal, 20 F.3d at 459. B. 1996 and 1997 Copyrights 1. Legal Framework To establish copyright infringement, “two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). “If the plaintiff does not have direct proof of copying, the plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are ‘substantially similar.’ ” Herzog, 193 F.3d at 1248. Here, the district court found that Oravec owned valid copyrights in his 1996 and 1997 designs, and that there were disputed issues of fact as to whether certain defendants had access to those designs. Thus, summary judgment turned on the issue of substantial similarity. We have defined substantial similarity as existing “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982) (internal quotation marks omitted). Not all copying constitutes infringement, however, see Feist, 499 U.S. at 361, 111 S.Ct. at 1296, and therefore we have emphasized that the substantial similarity analysis “must focus on similarity of expression, i.e., material susceptible of copyright protection.” Beal, 20 F.3d at 459 n. 4; see also Leigh, 212 F.3d at 1214 (stating that a copyright plaintiff “must establish specifically that the allegedly infringing work is substantially similar to the plaintiffs work with regard to its protected elements”): “Thus, in an action for infringement, it must be determined both whether the similarities between the works are substantial from the point of view of the lay [observer] and whether those similarities involve copyrightable material.” Herzog, 193 F.3d at 1248. In identifying the protected elements of a plaintiffs work, the court must be mindful of the fundamental axiom that copyright" }, { "docid": "18740599", "title": "", "text": "“two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). The copying element, in turn, consists of two elements. First, plaintiff must prove that defendant actually used plaintiffs work as a source of material or ideas for her own work. Arnstein v. Porter, supra, 154 F.2d at 468; Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986), aff'g 615 F.Supp. 430 (S.D.N.Y.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986). Copying may be inferred from evidence of access and similarities between the copyrighted work and the accused work. Arnstein, 154 F.2d at 468; see also Warner Bros., 654 F.2d at 207 (copying may be inferred “where a plaintiff establishes that the defendant had access to the copyrighted work and that the two works are substantially similar.”). Second, plaintiff must prove that defendant improperly appropriated copyrightable material. Walker, 784 F.2d at 48. Copying is actionable when defendant appropriates the economic value of the work as measured by the work’s appeal to the public. If defendant has appropriated that value, she has undermined the incentive created by copyright law and has infringed plaintiff’s copyright. To prevail, plaintiff must establish that, from the standpoint of the lay reader, the works are “substantially similar.” Hoehling, 618 F.2d at 977; Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966) (L. Hand, J.) (“whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work”); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (“[T]he patterns in which these figures are distributed are not identical. However, the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.”); Arnstein, 154 F.2d at 473. Such substantial similarity appropriates the economic value of a plaintiffs work. The protection afforded by copyright," }, { "docid": "23626790", "title": "", "text": "Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir.1994) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). Two separate inquiries must be made to determine whether actionable copying has occurred. The first question is whether the alleged infringer copied, or “actually used the copyrighted material in his own work.” Id. Copying can be proven by direct or circumstantial evidence. Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946) (Frank, J.). Circumstantial evidence may support an inference of copying if the defendant had access to the copyrighted work and there is “probative similarity” between the copyrighted work and the allegedly infringing work. Eng’g Dynamics, Inc., 26 F.3d at 1340. The second question is whether “substantial similarity” exists between the copyrighted work and the allegedly infringing work. Id. at 1341. To answer this question, “a side-by-side comparison must be made between the original and the copy to determine whether a layman would view the two works as ‘substantially similar.’ ” Creations Unlimited v. McCain, 112 F.3d 814, 816 (5th Cir.1997) (per curiam). George contends that he need not produce evidence of substantial similarity between the copyrighted software and the software used by Array because there is evidence of direct copying. This argument simply misperceives that “not all ‘factual’ copying constitutes legally actionable copyright infringement.” Creations Unlimited v. McCain, 112 F.3d at 816; Attia v. Soc’y of the New York Hosp., 201 F.3d 50, 53-54 (2d Cir.1999). Further, the law of this circuit prohibits finding copyright infringement without a side-by-side comparison of the two works: While a determination of substantial similarity should typically be left to the fact-finder, the Creations Unlimited decision contemplates that a fact-finder will have the opportunity to view the two works side-by-side. Indeed, ... copying is an issue to be determined by comparison of works, not credibility. [The plaintiffs] failure to adduce evidence for such a comparison vitiates her claim. King, 179 F.3d at 376 (internal citations omitted). Following King, George’s failure to adduce evidence to allow a comparison between the ADS and the" } ]

[ { "docid": "23398640", "title": "", "text": "reports in toto, and decided this case on the ground that the “drug testing results” were business records and not testimonial. United States v. Blazier, 68 M.J. 544, 545-46 (A.F.Ct.Crim.App.2008). Finding no error, the CCA did not have cause to examine the effect of error on the case. As noted supra, the testimonial cover memoranda were admitted in violation of the Confrontation Clause. See Blazier I, 68 M.J. at 443. In light of this admission and Dr. Papa’s repetition of the cover memo-randa in his testimony, it is appropriate to consider harmlessness in light of a constitutional error. “For most constitutional errors at trial, we apply the harmless error test set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to determine whether the error is harmless beyond a reasonable doubt.” United States v. Upham, 66 M.J. 83, 86 (C.A.A.F.2008). Evidence admitted in violation of ... the Confrontation Clause of the Sixth Amendment is subject to that standard. United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F.2009). Dr. Papa could have arrived at an expert opinion based on training, education, experience, and admissible evidence alone, and considered, but not repeated, inadmissible evidence in arriving at an independent expert opinion. Such expert opinion and admissible evidence together could have been legally sufficient to establish the presence of drug metabolite in the urine tested. See United States v. Barrow, 45 M.J. 478, 479 (C.A.A.F.1997). But in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence. See Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Rather, “ ‘[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Chapman, 386 U.S. at 23, 87 S.Ct. 824 (quoting Fahy, 375 U.S. at 86-87, 84 S.Ct. 229). This determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case. In this case the" } ]

[ { "docid": "23493458", "title": "", "text": "Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, we remand to the Court of Criminal Appeals to determine the altogether different question whether the inadmissible succinct summaries and expert’s repetition of inadmissible hearsay were harmless beyond a reasonable doubt. V. CONCLUSION Because the cover memorandum and specimen custody document contained in the NDSL report were plainly and obviously testimonial, the decision below is reversed, and the case is remanded to the United States Navy-Marine Corps Court of Criminal Appeals for consideration of whether the erroneous admission of testimonial hearsay was harmless beyond a reasonable doubt. . United States v. Blazier (Blazier II), 69 M.J. 218, 222 (C.A.A.F.2010); United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F.2010). . On September 10, 2010, we granted the petition for review on two issues: I. WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. 305, 129 S.Ct. 2527 [174 L.Ed.2d 314] (2009), THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. II. WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG LABORATORY REPORT CONSTITUTED A VALID CRAWFORD OBJECTION. IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR. On February 23, 2011, we specified an additional issue: WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, [557 U.S. 305] 129 S.Ct. 2527 [174 L.Ed.2d 314] (2009), IN ASSERTING THAT UNITED STATES v. MAGYARI, 63 M.J. 123 (C.A.A.F.2006), \"FOUND DRUG LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE NONTESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE. SEE UNITED STATES v. BLAZIER, 69" }, { "docid": "23493457", "title": "", "text": "could have been legally sufficient to establish the presence of drug metabolite in the urine tested. See United States v. Barrow, 45 M.J. 478, 479 (C.A.A.F.1997). But in assessing harmlessness in the constitutional context, the question is not whether the evidence was legally sufficient to uphold a conviction without the erroneously admitted evidence. See Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Rather, “ ‘[t]he question is whether there is a reasonable probability that the evidence complained of might have contributed the conviction.’” Chapman [v. California], 386 U.S. [18], 23, 87 S.Ct. 824 [17 L.Ed.2d 705 (1967) ] (quoting Fahy, 375 U.S. at 86-87, 84 S.Ct. 229). This determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual ease. Blazier II, 69 M.J. at 226-27. Here, as in Blazier II, the expert witness’s independent opinion combined with the admissible machine-generated printouts could have provided legally sufficient evidence to convict Appellant under Barrow and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, we remand to the Court of Criminal Appeals to determine the altogether different question whether the inadmissible succinct summaries and expert’s repetition of inadmissible hearsay were harmless beyond a reasonable doubt. V. CONCLUSION Because the cover memorandum and specimen custody document contained in the NDSL report were plainly and obviously testimonial, the decision below is reversed, and the case is remanded to the United States Navy-Marine Corps Court of Criminal Appeals for consideration of whether the erroneous admission of testimonial hearsay was harmless beyond a reasonable doubt. . United States v. Blazier (Blazier II), 69 M.J. 218, 222 (C.A.A.F.2010); United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F.2010). . On September 10, 2010, we granted the petition for review on two issues: I. WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. 305, 129 S.Ct. 2527 [174 L.Ed.2d 314] (2009), THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT'S SIXTH" }, { "docid": "23493446", "title": "", "text": "continued to cite Magyari without further analysis as the basis for finding no error in the admission of all portions of a drug test report except the cover memorandum where the impetus behind the initial urinalysis was unit inspection, rather than law enforcement. But decisions of this Court and the Supreme Court since Magyari dictate that further analysis is required. First, it is emphatically not the ease that a statement is automatically nontestimonial by virtue of it being a “routine” statement of “unambiguous factual matters.” Magyari, 63 M.J. at 126 (citations omitted). Indeed, “[m]ost witnesses ... testify to their observations of factual conditions or events, e.g., ‘the light was green,’ ‘the hour was noon.’” Bullcoming, 131 S.Ct. at 2714. But this does not render such observations nontestimonial. Id. at 10-11. But see Magyari, 63 M.J. at 126-27; Brief of Appellee at 20-24, United States v. Sweeney, No. 10-0461 (C.A.A.F. Nov. 23, 2010). Second, Magyari and the dissent notwithstanding, see Sweeney, 70 M.J. at 309-10 (Baker, J., dissenting), more recent case law demonstrates that the focus has to be on the purpose of the statements in the drug testing report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing. The relevant question is thus whether the statement is “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Blazier I, 68 M.J. at 442 (quoting Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354) (quotation marks omitted). Asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary? See Blazier I, 68 M.J. at 442 (noting that “fine distinctions based on the impetus behind the testing and the knowledge of those conducting laboratory tests” are “relevant” but not dispositive in determining whether the purpose of a “statement” is evidentiary). Although those performing initial drug tests may well be “independent scientist[s]” carrying out “non-adversarial public dut[ies],” that does not mean that their statements are not" }, { "docid": "19673528", "title": "", "text": "Judge RYAN delivered the opinion of the Court. Contrary to his pleas, a panel of officer members sitting as a special court-martial convicted Appellant of a single specification of wrongfully using marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2006). The adjudged and approved sentence provided for a bad-conduct discharge and reduction to E-l. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed the findings and sentence as approved by the convening authority. United States v. Tearman, 70 M.J. 640, 645 (N.M.Ct.Crim.App.2012). We granted Appellant’s petition for review to determine whether: (1) the admission of the chain-of-custody documents and internal review worksheets violated Appellant’s right of confrontation under the Sixth Amendment; and (2) the admission of the official test result and certification contained in the DD Form 2624 in violation of the Confrontation Clause of the Sixth Amendment was harmless beyond a reasonable doubt. Applying the principles set forth in United States v. Sweeney, 70 M.J. 296 (C.A.A.F.2011), United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F.2010), and United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F.2010), as well as Supreme Court precedent, see Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we agree with the NMCCA that the chain-of-custody documents and internal review worksheets at issue in this case are nontestimonial. Tearman, 70 M.J. at 642-43. Further, applying the balancing test set forth in Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), we also agree with the NMCCA that the error in admitting the official test result and certification contained in the DD Form 2624 was harmless beyond a reasonable doubt. Tearman, 70 M.J. at 645. I. FACTS On July 7, 2010, Appellant was one of approximately forty-four Marines randomly selected to participate in a" }, { "docid": "23493461", "title": "", "text": "time of trial, the Supreme Court had decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and this Court had decided Magyari and Harcrow. . Appellant has not appealed this ruling and does not argue that this colloquy constituted a Crawford objection to the drug testing report or report summary. . According to Mr. Marinari, his role as FLCO did not involve participation in or observation of the testing, but simply involved certifying the results of the GC/MS cocaine test after reviewing \"all the chain of custody documents, and all the test data” and determining that the test \"met all requirements established by DOD.” . Despite finding that Appellant \"waive[d]\" his objection to the laboratory documents, Sweeney, No. NMCCA 200900468, slip op. at 3 (citing Rule for Courts-Martial (R.C.M.) 905(e), Manual for Courts-Martial, United States (2008 ed.) (MCM)), the court nonetheless analyzed whether the admission of those documents was erroneous and did not apply the plain error test. .The \"text of the Sixth Amendment” does not contain exceptions for the military. But see United States v. Sweeney, 70 M.J. 296, 307 (C.A.A.F.2011) (Baker, J., dissenting). And our case law has more than once applied the Confrontation Clause to documents generated in the military urinalysis program. See United States v. Cavitt, 69 M.J. 413, 413 (C.A.A.F.2011); Blazier II, 69 M.J. at 222. This case does not involve a statute, presidential rule, or judicial decision purporting to diminish the protections afforded by the Confrontation Clause in the military urinalysis context; nor has the Government attempted to demonstrate a military exigency requiring diminished protection. See, e.g., United States v. Jacoby, 11 C.M.A. 428, 433, 29 C.M.R. 244, 249 (1960). Accordingly, we have no cause in this case to depart from Blazier II, in which we applied the Confrontation Clause according to the usual principles established by Supreme Court precedent. . See, e.g., United States v. Lusk, No. ACM S31624, 2010 CCA LEXIS 367, at *7-*8, 2010 WL 4068922, at *3 (A.F.Ct.Crim.App. Oct. 14, 2010); United States v. Dunn, No. ACM S31584, 2010 CCA LEXIS 169, at *27, 2010" }, { "docid": "2732026", "title": "", "text": "in Appellant’s favor.” Moss, 63 M.J. at 239. Under these circumstances, the decision of the military judge to permit use of the past event by the prosecution to enhance her credibility, while denying the defense an opportunity to explore the impact of that event on her credibility, constituted prejudicial error. V. CONCLUSION The decision of the United States Navy-Marine Corps Court of Criminal Appeals as it concerns the convictions of rape, unlawful entry, and adultery is reversed, and a rehearing is authorized. STUCKY, Judge, with whom BAKER, Judge, joins (dissenting): I disagree with the majority’s application of the law of the case doctrine in this ease. I further do not believe that the alleged error was prejudicial. Therefore, I respectfully dissent. I. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that the military judge erred by barring Appellant from cross-examining the prosecutrix, Seaman ARM. United States v. Savala, No. 200800818, 2010 CCA LEXIS 9, 2010 WL 317687 (N.M.Ct.Crim.App. Jan. 28, 2010) (unpublished). Nevertheless, the CCA held that the error was harmless beyond a reasonable doubt and affirmed Appellant’s conviction for rape. 2010 LEXIS 9, at *17-*18, 2010 WL 317687, at *6-*7. The Government did not appeal the CCA’s finding of error but asserted as much in its reply to Appellant’s appeal. The majority applies the law of the case doctrine to bar consideration of this issue. United States v. Savala, 70 M.J. at 76-77 (C.A.A.F.2011). The law of the ease doctrine holds “that a decision rendered in a former appeal of a case is binding in a later appeal.” Black’s Law Dictionary 966 (9th ed. 2009). The Supreme Court has made clear that just as the prevailing party at trial may assert on appeal any ground in support of a judgment, whether or not that ground was relied upon or even considered by the trial court[,] .... [it] is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an" }, { "docid": "23493459", "title": "", "text": "AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. II. WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG LABORATORY REPORT CONSTITUTED A VALID CRAWFORD OBJECTION. IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR. On February 23, 2011, we specified an additional issue: WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, [557 U.S. 305] 129 S.Ct. 2527 [174 L.Ed.2d 314] (2009), IN ASSERTING THAT UNITED STATES v. MAGYARI, 63 M.J. 123 (C.A.A.F.2006), \"FOUND DRUG LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE NONTESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE. SEE UNITED STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F.2010); UNITED STATES v. BLAZIER, 68 M.J. 439 (C.A.A.F.2010); AND UNITED STATES v. HARCROW, 66 M.J. 154 (C.A.A.F.2008). .Although the drug testing report’s specimen custody document indicates that the sample was submitted voluntarily, the military judge found, based on the OIC’s testimony, that Appellant submitted the sample pursuant to the OIC's order. The military judge made this finding in the course of ruling on Appellant's motion in limine to suppress the urinalysis results as the fruit of an unlawful search not justified by Military Rule of Evidence (M.R.E.) 313. The military judge denied that motion. Appellant has not appealed that ruling, and the issue is not before this Court. . Although Appellant initially was charged with wrongful use of both cocaine and codeine, the specification relating to codeine was subsequently dismissed. This appeal concerns only the specification charging wrongful use of cocaine. . The Supreme Court would not decide Melendez-Diaz until more than a month later, on June 25, 2009. And this Court would not decide the Blazier cases until 2010. At the" }, { "docid": "2689863", "title": "", "text": "123 L.Ed.2d 508 (1993)—whether the error \"seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770) (citation and quotation marks omitted); see United States v. Paige, 67 M.J. 442, 453 (C.A.A.F.2009) (Stucky, J., with whom Ryan, J., joined, dissenting in part and concurring in the result). . In Jones, we loosely used the term \"variance\" in reference to a conviction of an offense that was not an LIO. 68 M.J. at 473. Since \"variance” is a term of art, that \" 'exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge,’” United States v. Lubasky, 68 M.J. 260, 264 (C.A.A.F.2010) (quoting United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F.2003)), it would have been better had we used “amendment,” which occurs when the prosecution or the court either literally or constructively alters the terms of the charging document. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The problem here is not that the Government's proof did not match the allegations on the charge sheet, but that the charge sheet was constructively amended by convicting Appellee of an offense with elements not contained in the specification. . We note that it is unclear whether the NMCCA tested for prejudice, but we affirmatively do so here. BAKER, Judge (dissenting): I adhere to my dissent in United States v. Girouard, 70 M.J. at 12 (C.A.A.F.2011) (Baker, J., dissenting). First, for the reasons stated in my dissents in Girouard and in United States v. Jones, 68 M.J. 465, 473 (C.A.A.F.2010) (Baker, J., dissenting), negligent homicide was an LIO of involuntary manslaughter at the time of Appellee’s trial and, in my view, it remains so. Second, although I agree that one may not be convicted of an offense for which one has not been charged and that the retroactive application of the Jones" }, { "docid": "23493469", "title": "", "text": "not a case in which the [Government] introduced only machine-generated results, such as a printout from a gas chroma-tograph.” See id. (Sotomayor, J., concurring in part). Bullcoming commands our decision in this case; it does not undermine it. . While formality may not be the exclusive means of deciding whether a statement is testimonial, but see Michigan v. Bryant, - U.S. -, 131 S.Ct. 1143, 1167, 179 L.Ed.2d 93 (2011) (Thomas, J., concurring), the informal stamps, signatures, notations, and numbers are not so clearly testimonial as to meet the heightened “plain and obvious” standard applied on plain error review. BAKER, Judge, joined by STUCKY, Judge (concurring in part and dissenting in part): INTRODUCTION The majority reaches two conclusions. First, it concludes that it was plain and obvious error to admit the cover memorandum reporting the results of the urinalysis. United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011). This conclusion is supported by the holding in United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010), with which I concur. A cover memo drafted specifically for use at a court-martial reporting urinalysis test results is testimonial and falls squarely within the Supreme Court’s Crawford v. Washington line of cases. Second, the majority concludes that it was also plain error to admit the specimen custody document certification, also known as De partment of Defense (DD) Form 2624. Sweeney, 70 M.J. at 304. This is the Department of Defense’s basic chain of custody form for running its urinalysis program, for purposes of military readiness as well as for purposes of military justice. I would not find plain error with respect to the admission of this document or any other urinalysis documents. As discussed below, Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), delimits the reach of Crawford, as did Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), before. Among other things, Bull-coming requires lower courts to consider the primary purpose behind documents, and the statements therein, at the time they were created. 131 S.Ct. at 2717. Justice Sotoma-yor’s decisive" }, { "docid": "23493462", "title": "", "text": "military. But see United States v. Sweeney, 70 M.J. 296, 307 (C.A.A.F.2011) (Baker, J., dissenting). And our case law has more than once applied the Confrontation Clause to documents generated in the military urinalysis program. See United States v. Cavitt, 69 M.J. 413, 413 (C.A.A.F.2011); Blazier II, 69 M.J. at 222. This case does not involve a statute, presidential rule, or judicial decision purporting to diminish the protections afforded by the Confrontation Clause in the military urinalysis context; nor has the Government attempted to demonstrate a military exigency requiring diminished protection. See, e.g., United States v. Jacoby, 11 C.M.A. 428, 433, 29 C.M.R. 244, 249 (1960). Accordingly, we have no cause in this case to depart from Blazier II, in which we applied the Confrontation Clause according to the usual principles established by Supreme Court precedent. . See, e.g., United States v. Lusk, No. ACM S31624, 2010 CCA LEXIS 367, at *7-*8, 2010 WL 4068922, at *3 (A.F.Ct.Crim.App. Oct. 14, 2010); United States v. Dunn, No. ACM S31584, 2010 CCA LEXIS 169, at *27, 2010 WL 3981682, at *9 (A.F.Ct.Crim.App. Aug. 31, 2010); United States v. Weeks, No. ACM S31625, 2010 CCA LEXIS 193, at *6-*7, 2010 WL 4069035, at *3 (A.F.Ct.Crim.App. July 26, 2010); United States v. Burton, No. ACM S31632, slip. op. at 4 (A.F.Ct.Crim.App. June 18, 2010); United States v. Stewart, No. ACM S31685, 2010 CCA LEXIS 255, at *8-*9, 2010 WL 4068947, at *3 (A.F.Ct.Crim.App. June 8, 2010); United States v. Nutt, No. ACM S31600, 2010 CCA LEXIS 198, at *11, 2010 WL 2265272, at *4 (A.F.Ct.Crim.App. May 6, 2010); United States v. Robinson, No. NMCCA 200800827, 2010 CCA LEXIS 8, at *10-*12, 2010 WL 317686, at *4 (N-M.Ct.Crim.App. Jan. 28, 2010); United States v. Skrede, No. 2009-09, 2009 WL 4250031, at *2-*3, 2009 CCA LEXIS 443, at *6 (A.F.Ct.Crim.App. Nov. 23, 2009). . Magyari’s reasoning to the contrary relied, like the Supreme Judicial Court of Massachusetts in Melendez-Diaz, upon Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005). The Supreme Court has specifically rejected Verde's reasoning. See Melendez-Diaz, 129 S.Ct. at 2532. .That a" }, { "docid": "19673560", "title": "", "text": "and notations, the government may choose to establish those challenged steps through live witness testimony, or choose not to at its own peril. See Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. 2527. . We note that here, unlike in Sweeney, 70 M.J. at 304, Appellant objected to the admission of the drug testing report. Therefore, plain error re view is inapplicable. Nevertheless, under Van Arsdall, the erroneous admission of blocks G and H of the DD Form 2624 remains subject to harmless error analysis. 475 U.S. at 684, 106 S.Ct. 1431. . With respect to the fourth Van Arsdall factor, the NMCCA did note that the declarants of the testimonial portions of the DD Form 2624 did not testify and therefore could not have been cross-examined. Tearman, 70 M.J. at 645. While this factor would weigh against a finding that the admission of the testimonial statements was harmless beyond a reasonable doubt, it is far outweighed by the other four Van Arsdall factors. BAKER, Chief Judge (concurring in part and in the result): I write separately because I continue to believe that the application of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and the line of cases that followed, cannot and should not be resolved without analysis of the distinct features and purposes of the military drug testing program. A lab report generated as part of an anonymous unit random urinalysis inspection intended to deter drug use and promote military readiness is not the same as a lab report generated from the testing of a single sample by a forensic drug lab for the purpose of prosecution. As importantly, I do not believe one can resolve this case without first addressing Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). Williams is the Supreme Court’s latest Crawford case. It was decided after United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), and United States v. Blazier, 69 M.J. 218 (C.A.A.F.2010), and it narrows the reach of the Supreme Court’s prior cases upon which this Court relies. The Confrontation" }, { "docid": "23493445", "title": "", "text": "drug testing report was nontestimonial in toto if those conducting the tests “were not engaged in a law enforcement function, a search for evidence in anticipation of prosecution or trial” and were “merely cataloguing the results of routine tests.” Magyari, 63 M.J. at 126-27. Ma-gyari concluded that drug tests initiated by a unit sweep are nontestimonial because “[t]here [was] no indication that any of [the laboratory technicians] had reason, or were under pressure, to reach a particular conclusion about [the accused’s] sample ... or that they had reason to distinguish [the accused’s sample] from the other thousands of samples routinely screened and tested by batch at the laboratory.” Id. at 127. Conversely, drug testing reports were testimonial “where the testing [was] initiated by the prosecution to discover incriminating evidence.” Id. (emphasis added); see also Harcrow, 66 M.J. at 159 (holding that where the testing was initiated by the prosecution to discover incriminating evidence, the laboratory documents were testimonial). As a result, even after Melendez-Diaz, Blazier I, and Blazier II, the Courts of Criminal Appeals have continued to cite Magyari without further analysis as the basis for finding no error in the admission of all portions of a drug test report except the cover memorandum where the impetus behind the initial urinalysis was unit inspection, rather than law enforcement. But decisions of this Court and the Supreme Court since Magyari dictate that further analysis is required. First, it is emphatically not the ease that a statement is automatically nontestimonial by virtue of it being a “routine” statement of “unambiguous factual matters.” Magyari, 63 M.J. at 126 (citations omitted). Indeed, “[m]ost witnesses ... testify to their observations of factual conditions or events, e.g., ‘the light was green,’ ‘the hour was noon.’” Bullcoming, 131 S.Ct. at 2714. But this does not render such observations nontestimonial. Id. at 10-11. But see Magyari, 63 M.J. at 126-27; Brief of Appellee at 20-24, United States v. Sweeney, No. 10-0461 (C.A.A.F. Nov. 23, 2010). Second, Magyari and the dissent notwithstanding, see Sweeney, 70 M.J. at 309-10 (Baker, J., dissenting), more recent case law demonstrates that the focus" }, { "docid": "19673546", "title": "", "text": "the chain-of-custody documents and the internal review worksheets at issue are testimonial and that the military judge did not abuse his discretion in admitting them as business records under M.R.E. 803(6). B. In contrast to the statements made in the chain-of-custody documents and internal review worksheets, blocks G and H of the DD Form 2624 were testimonial statements under Sweeney and, therefore, their admission was error. See 70 M.J. at 304 (“[I]t was plain and obvious error to admit the specimen custody document certification. This certification is a formal, affidavit-like statement of evidence”). Therefore, we review for prejudice. Id. at 306. Relief for Confrontation Clause errors will be granted only where they are not harmless beyond a reasonable doubt. Id. Whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo. See United States v. Savala, 70 M.J. 70, 77 (C.A.A.F.2011). In the context of the erroneous admission of testimonial hearsay, our harmless beyond a reasonable doubt inquiry focuses on whether “ ‘there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Blazier II, 69 M.J. at 226-27 (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). To determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, this Court has adopted the balancing test established in Van Arsdall, considering such factors as: “[1] the importance of the unconfronted testimony in the prosecution’s case, [2] whether that testimony was cumulative, [3] the existence of corroborating evidence, [4] the extent of confrontation permitted, and [5] the strength of the prosecution’s case.” Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431). This list of factors is not exhaustive, and “‘[the] determination is made on the basis of the entire record.’” Sweeney, 70 M.J. at 306 (quoting Blazier II, 69 M.J. at 227). To conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, we must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered" }, { "docid": "3092936", "title": "", "text": "drug testing reports for urine specimens collected either randomly or through unit sweeps were nontestimonial. Magyari, 63 M.J. at 126-27. This was because NDSL employees had no basis to suspect that any particular specimen would test positive or that the testing thereof and the ensuing results would be used at trial. Id. at 126. However, CAAF later held that formal memoranda prepared at the request of prosecutors which summarize the contents of the DTR and identify the presence and quantity of an illegal drug are testimonial, because the purpose of that hearsay statement is to establish or prove a fact in a criminal proceeding. Blazier I, 68 M.J. at 443; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2539-41, 174 L.Ed.2d 314 (2009). In a recent decision regarding admission of DTRs, CAAF refocused attention on the purpose behind each statement within the DTR, instead of a blanket rule based on the purpose behind the urinalysis collection and testing. United States v. Sweeney, 70 M.J. 296, 302 (C.A.A.F.2011) (“[ajsked another way, would it be reasonably foreseeable to an objeetive person that the purpose of any individual statement in a drug testing report is evidentiary?”). Under the facts of that case, CAAF held that a cover memorandum to the DTR certifying the test results and the specimen custody document certification (DD 2624) were both testimonial, that their admission was error, and that the error was plain or obvious; CAAF then remanded the case for a determination of prejudice. Applying Sweeney to the facts of this case, we review the contents of Prosecution Exhibit 4 to determine whether any statements therein are testimonial. Prosecution Exhibit 4 can be distilled into four categories: machine generated annotations; internal chain of custody forms (excluding the DD 2624); review worksheets (one each for the screen, rescreen and confirmation tests); and the DD 2624. As to the first category, we find that those pages containing machine generated annotations are nontestimonial. United States v. Blazier (Blazier II), 69 M.J. 218, 224 (C.A.A.F.2010). Next are the internal chains of custody documents. These eight pages, containing a total" }, { "docid": "19673582", "title": "", "text": "are subject to. Alternatively, courts-martial will be left to continue litigating each entry and each block of each form going forward leading to inconsistent rulings. The majority’s rule will also certainly lead to inconsistent application of the law. Different commanders will differently weigh the needs of military readiness against the leadership, administrative, nonjudicial, and prosecutorial choices that they will face after a positive urinalysis test. From my perspective, Supreme Court case law does not address this military context, and neither the text of the Constitution nor ease law dictates this result. For these reasons, I concur in the result and in the analysis regarding the introduction of Ms. Kaminski’s expert testimony, but do not join the analysis with respect to the DoD Form DD-2624 or note 6, which in my view, should address the distinct military context presented by a random urinalysis inspection as well as Williams, the Supreme Court’s latest Crawford ease. . See Dep't of Defense Dir. 1010.01, Military Personnel Drug Abuse Testing Program (MPDATP) (Sept. 13, 2012) [hereinafter Dep't of Defense Dir. 1010.01]; Dep’t of Defense Dir. 1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program (MPDATP) (Oct. 10, 2012); see also Sweeney, 70 M.J. 296; United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F.2010); United States v. Blazier {Blazier I), 68 M.J. 439 (C.A.A.F.2010); United States v. Harcrow, 66 M.J. 154 (C.A.A.F.2008); United States v. Magyari, 63 M.J. 123 (C.A.A.F.2006). . The MPDATP operates under Dep't of Defense Dir. 1010.01. Dep’t of Defense Dir. 1010.01 mandates three purposes for drug testing: (1) to ''[p]ermit commanders to use drug testing to detect drug abuse and to assess the security, military fitness, readiness, and good order and discipline of their commands”; (2) to deter ser-vicemembers, including those entering active duty, from misusing drugs “including pharmaceutical medications, illegal drugs, and other substances of abuse\"; and (3) to “[pjrocess all Service members who knowingly misuse drugs for separation in accordance with applicable Service regulations.” Id. at para. 4.b.-d. The directive notes that the “drug testing program shall enable commanders to take action, adverse or otherwise (including referral" }, { "docid": "23493468", "title": "", "text": "in unlawful conduct — that the program is being administered as intended” or to \"assure[] commanders that they have an accurate understanding of the degree, if any, of controlled substance use (authorized and unauthorized) in their unit.” Sweeney, 70 M.J. at 310 (Baker, J., dissenting). As noted supra note 15, it could be a different case had the Government presented any evidence of an alternate purpose of the documents at issue. Second, as described supra, Mr. Marinari testified that he was not present for any stage of the testing; he is therefore not \"a supervisor who observed an analyst conducting a test [and who] testified about the results or a report about such results.” See Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring in part). Third, \"this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” See id. (Sotomayor, J., concurring in part). The specimen custody document was admitted into evidence. Finally, as the dissent acknowledges, \"this is not a case in which the [Government] introduced only machine-generated results, such as a printout from a gas chroma-tograph.” See id. (Sotomayor, J., concurring in part). Bullcoming commands our decision in this case; it does not undermine it. . While formality may not be the exclusive means of deciding whether a statement is testimonial, but see Michigan v. Bryant, - U.S. -, 131 S.Ct. 1143, 1167, 179 L.Ed.2d 93 (2011) (Thomas, J., concurring), the informal stamps, signatures, notations, and numbers are not so clearly testimonial as to meet the heightened “plain and obvious” standard applied on plain error review. BAKER, Judge, joined by STUCKY, Judge (concurring in part and dissenting in part): INTRODUCTION The majority reaches two conclusions. First, it concludes that it was plain and obvious error to admit the cover memorandum reporting the results of the urinalysis. United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011). This conclusion is supported by the holding in United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010), with which I concur. A cover memo" }, { "docid": "2732025", "title": "", "text": "people present. Under the circumstances, assessment of credibility was a critical issue in the case. The strength of the Government’s circumstantial case in other respects does not overcome these considerations. The responsibility at trial for determining whether to believe the version of events provided by the prosecution or the defense rested with the panel members, and the ruling by the military judge enabled the prosecution to enhance the credibility of its version while handcuffing the defense. Issues of witness credibility and motive are matters for the members to decide. United States v. Moss, 63 M.J. 233, 239 (C.A.A.F.2006). When assessing prejudice, we assume that the “damaging potential of the cross-examination were fully realized.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. In that light, we assume, without reaching a conclusion on the merits of the charges at issue, that Appellant’s cross-examination could have convinced the panel that the prior allegation was false. If the members believed that Seaman ARM had made a prior false allegation of rape it “may have tipped the credibility balance in Appellant’s favor.” Moss, 63 M.J. at 239. Under these circumstances, the decision of the military judge to permit use of the past event by the prosecution to enhance her credibility, while denying the defense an opportunity to explore the impact of that event on her credibility, constituted prejudicial error. V. CONCLUSION The decision of the United States Navy-Marine Corps Court of Criminal Appeals as it concerns the convictions of rape, unlawful entry, and adultery is reversed, and a rehearing is authorized. STUCKY, Judge, with whom BAKER, Judge, joins (dissenting): I disagree with the majority’s application of the law of the case doctrine in this ease. I further do not believe that the alleged error was prejudicial. Therefore, I respectfully dissent. I. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that the military judge erred by barring Appellant from cross-examining the prosecutrix, Seaman ARM. United States v. Savala, No. 200800818, 2010 CCA LEXIS 9, 2010 WL 317687 (N.M.Ct.Crim.App. Jan. 28, 2010) (unpublished). Nevertheless, the CCA held that the error was harmless beyond" }, { "docid": "3092935", "title": "", "text": "testimonial hearsay and its admission was error, but the error was harmless beyond a reasonable doubt. Discussion We review a military judge’s decision to admit or exclude evidence for an abuse of discretion; however, whether the evidence contains testimonial hearsay is a matter of law we review de novo. United States v. Blazier (Blazier I), 68 M.J. 439, 441-42 (C.A.A.F.2010). With Crawford, the admission of hearsay shifted from a reliability analysis under Ohio v. Roberts, to an analysis of whether the hearsay is testimonial or nontestimonial. If testimonial, the Sixth Amendment requires otherwise admissible hearsay to satisfy the Confrontation Clause. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. Among those core groups of hearsay defined by Crawford as testimonial are “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51-52, 124 S.Ct. 1354 (internal quotation marks and citation omitted). Following Crawford, the Court of Appeals for the Armed Forces (CAAF) decided Magyari and held that drug testing reports for urine specimens collected either randomly or through unit sweeps were nontestimonial. Magyari, 63 M.J. at 126-27. This was because NDSL employees had no basis to suspect that any particular specimen would test positive or that the testing thereof and the ensuing results would be used at trial. Id. at 126. However, CAAF later held that formal memoranda prepared at the request of prosecutors which summarize the contents of the DTR and identify the presence and quantity of an illegal drug are testimonial, because the purpose of that hearsay statement is to establish or prove a fact in a criminal proceeding. Blazier I, 68 M.J. at 443; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2539-41, 174 L.Ed.2d 314 (2009). In a recent decision regarding admission of DTRs, CAAF refocused attention on the purpose behind each statement within the DTR, instead of a blanket rule based on the purpose behind the urinalysis collection and testing. United States v. Sweeney, 70 M.J. 296, 302 (C.A.A.F.2011) (“[ajsked another way, would it" }, { "docid": "19673555", "title": "", "text": "present for the GCMS confirmation test, which took place in her department. . Chief Judge Baker's discussion of the testimonial/nontestimonial nature of blocks G and H of the DD Form 2624, in the wake of Williams v. Illinois, - U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) (plurality opinion), see United States v. Tearman, 72 M.J. 54, 68-69 (C.A.A.F.2013) (Baker, C.J., concurring in part and in the result), is irrelevant to the issues before us. Even assuming that Williams either stands for the holding or has the precedential value he asserts, that the DD Form 2624 certifications are testimonial was decided in Sweeney, 70 M.J. at 304 — the continuing vitality of which is not raised by the granted issues. See Tearman, 71 M.J. 197 (order granting review). Furthermore, the Government not only declined to challenge the NMCCA’s holding that it was constitutional error to admit blocks G and H of the DD Form 2624, Tearman, 70 M.J. at 643, but also conceded that the DD Form 2624 is testimonial during oral argument, Audio recording of oral argument at 18:58, Tearman, 71 M.J. 448 (C.A.A.F. Oct. 23, 2012) (No. 12-0313), http://www.armfor. uscourts .gov/newcaaftcalendar^O 12-10. htm# 23' — months after Williams was decided— and instead focúsed its argument on the fact that the error was harmless beyond a reasonable doubt. . We do not view Williams, 132 S.Ct. 2221, as altering either the Supreme Court’s or this Court’s Confrontation Clause jurisprudence and do not attempt to unravel Williams's various opinions except to note that (1) there was no majority support for any point but the result, see Williams, 132 S.Ct. at 2265 (Kagan, J., with whom Scalia, J., Ginsburg, J., and Sotomayor, J., joined, dissenting) (\"Five Justices specifically reject every aspect of [the plurality’s] reasoning and every paragraph of its explication.”); id. at 2255 (Thomas, J., concurring in the judgment) (concluding that the \"statements lacked the requisite formality and solemnity to be considered testimonial for purposes of the Confrontation Clause,” but noting that he ”share[s] the dissent’s view of the plurality's flawed analysis”) (internal quotation marks omitted), and (2) the" }, { "docid": "19673545", "title": "", "text": "of nothing more than signatures, stamped names, dates, and minimal notations with no certification, swearing, witnessing, or other attestation. Cf. Melendez-Diaz, 557 U.S. at 308, 310-11, 129 S.Ct. 2527 (concluding that the “certificates of analysis” were “quite plainly affidavits” where they reported the drug type, amount, and “[t]he certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law”); id. at 330, 129 S.Ct. 2527 (Thomas, J., concurring) (same). The documents at issue in this case utterly lacked attendant formalities, a characteristic that stands in stark contrast to the formal, affidavit-like certificates and memoranda at issue in Bullcoming, Melendez-Diaz, Sweeney, and Blazier I, and is — under Sweeney — a factor that points to the statements being nontestimonial. 70 M.J. at 303 n. 13 (citing Bullcoming, 131 S.Ct. at 2717; Melendez-Diaz, 557 U.S. at 329, 129 S.Ct. 2527 (Thomas, J., concurring)). Based on all of the above, we agree with the NMCCA that none of the statements contained in the chain-of-custody documents and the internal review worksheets at issue are testimonial and that the military judge did not abuse his discretion in admitting them as business records under M.R.E. 803(6). B. In contrast to the statements made in the chain-of-custody documents and internal review worksheets, blocks G and H of the DD Form 2624 were testimonial statements under Sweeney and, therefore, their admission was error. See 70 M.J. at 304 (“[I]t was plain and obvious error to admit the specimen custody document certification. This certification is a formal, affidavit-like statement of evidence”). Therefore, we review for prejudice. Id. at 306. Relief for Confrontation Clause errors will be granted only where they are not harmless beyond a reasonable doubt. Id. Whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo. See United States v. Savala, 70 M.J. 70, 77 (C.A.A.F.2011). In the context of the erroneous admission of testimonial hearsay, our harmless beyond a reasonable doubt inquiry focuses on whether “ ‘there is a reasonable possibility that" } ]